USCIS Updated Policy Alert Concerning Direct Consular Filing at U.S. Embassies and Consulates

 

U.S. Citizenship and Immigration Services (“USCIS”) released an updated policy memorandum advising the Department of States (“DOS”) on adjudicating Form I-130 Petitions for Alien Relatives at U.S. Embassies and Consulates through Direct Consular Filing (“DCF.”)

The policy memorandum clarifies that USCIS will no longer accept and adjudicate routine I-130 Petitions at its remaining overseas field offices. The memorandum also removes the requirement for DOS to seek USCIS permission in advance of accepting an I-130 through DCF and instead, allows DOS at U.S. Embassies and Consulates to exercise independent discretion in determining whether to accept an I-130 Petition.

For more information, contact us today and speak with a U.S. immigration attorney in Ho Chi Minh City, Manila, or Taipei.

U.S. State Department 2019 Novel Coronavirus Has Not Changed Visa Adjudication

 

The U.S. Department of State (“DOS”) which oversees the visa adjudication process at U.S. Embassies and Consulates has not released any formal statement indicating that the 2019 Novel Coronavirus has resulted in the suspension of consular operations.  A recent social media posting purported to be an official statement from the U.S. Embassy in Manila indicated that as a result of the Coronavirus, B-1/ B-2 Visitor Visas applications were being suspended as of 10 February 2020. This posting was quickly rebutted by DOS as a hoax and reminded the public that there has been no change in the visa adjudication policy.

Screenshot of the false news source

 

Official statement from the U.S. Embassy in the Philippines

If you have any questions about U.S. Embassies and Consulates functions in Asia, contact us for clarification.

What are Lawful Source of Funds and Path of Funds for an EB-5 Immigrant Investor?

 

The investment capital that an EB-5 Investor may use for his or her investment, called the “lawful source of funds” (“SOF”), can come from any source as long as the investor can prove that the capital or funds were obtained lawfully.   Some common SOF are salary and bonus income, dividends from a company, stock options earned, or investment income.  Easily the most common SOF, in about 80% of cases, is an investor using a property owned by him or her or a family member such as a home or an apartment.

In this instance, the investor liquidates the funds for the investment by selling the home or obtaining a mortgage loan against the property.  There is still a need to source what we call the “seed money” which is to identify how the investor lawfully obtained the property, although the further back in time the acquisition occurred, the less documentation is usually required because it is understandable that records may not exist going back many years.

The funds must be personally invested into a qualifying business, called the New Commercial Enterprise (“NCE”) by the investor.  For example, the funds cannot originate from an investor’s business which he or she would remit straight into the NCE.  The investor must first own and control the funds at some point before investing.   Thus, if an investor wants to use accumulated capital from an existing business, he or she must take a distribution, pay whatever tax liability might be applicable, and then personally invest the capital into the NCE under his or her name, although in some situations a transfer agent can act to remit the funds on behalf of the investor.

There are some ways that an investor might “borrow” capital from a company but these can be complex and generally we prefer to avoid them.

If an investor has earned salary and distributions over many years, we would need to show receipt of such funds and then a link to where the funds are before the transfer begins.   Few investors leave sizable sums of salary or bonus income sitting in a savings account.   Most investors will deploy funds into various income earning products so it will be necessary to trace those funds which are being liquidated to be used for the investment.

The second critical factor is the path of funds.   The investor must be able to trace the path of the funds from the source all the way to the remittance into the NCE account.

In transferring the funds to the NCE, accumulating the funds into the investor’s account and then remitting to the NCE account should be clearly documented. In countries with currency exchange and remittance restrictions, this can be a significant obstacle.  Failure in the transfer of funds is one of the most common reasons for a denied I-526 petition.

Contact info@enterimmi.com for more information on the EB-5 immigrant investor visa.

USCIS to Change its Processing Policy for I-526, Immigrant Petition by Alien Investor EB-5 Petitions

 

U.S. Citizenship and Immigration Services (“USCIS”) announced it is changing the way it will process Form I-526, Immigrant Petition by Alien Investor, moving from a first-in, first-out basis to a visa availability approach.  The Form I-526 Petition is filed by someone wanting to immigrate to the U.S. via the EB-5 immigrant investor visa category.

“Changing our approach from a first-in, first-out adjudication process to one that prioritizes petitions connected to individuals from countries where visas are currently available better aligns the EB-5 program with congressional intent and makes it more consistent with other USCIS operations,”  said USCIS Deputy Director Mark Koumans. “This new approach increases fairness, allowing qualified EB-5 petitioners from traditionally underrepresented countries to have their petitions approved in a more timely fashion to receive consideration for a visa.”

According to USCIS, this operational change is consistent with the agency’s processing of Form I-130, Petition for Alien Relative, in visa cap-subject categories. The new visa availability approach gives priority to petitions where visas are immediately available, or soon available.  Applicants from countries where visas are immediately available will now be better able to use their annual per-country allocation of EB-5 visas.

The new approach will apply to petitions pending as of the effective date of the change. USCIS will implement the visa availability approach on March 31, 2020.

If you have questions about this policy change or the EB-5 visa category, contact us at info@enterimmi.com.

The United States Supreme Court To Allow Public Charge Rule To Take Effect

 

The U.S. Supreme Court has ruled in favor of a Trump Administration policy expanding the government’s ability to refuse immigrant visas and issue green cards to immigrants who are likely to become a Public Charge. The 5-4 ruling, which was divided on ideologically lines, will allow the new rule to take effect even as lower federal courts wrestle with multiple legal challenges that have been brought before them as a result of the policy.

Immigrant rights groups have criticized the policy arguing that it will discourage new immigrants from seeking necessary services and impeding immigrant visas from being issued in U.S. Embassies and Consulates abroad.

Immigrant visa refusals based on a Public Charge finding have significantly spiked under the Trump Administration. More than 12,000 immigrant visa applicants were refused in 2019 alone compared with only 1,033 in 2016 which was the last year of the Obama Administration.

Visa applicants based in the Philippines, Vietnam or Taiwan who have been refused immigrant visas based on Public Charge are encouraged to contact an experienced U.S. immigration lawyer in Manila, Ho Chi Minh City, or Taipei.

For more information about this Public Charge rule, please contact us at info@enterimmi.com.

State Department Expected to Publish New Guidelines in an Effort to Impede U.S. Birth Tourism

 

The United States Department of State (“DOS”) is scheduled to release new guidelines giving consular officers further discretion to determine whether women who are applying for a B-1/ B-2 visitor visa primary purpose is to give birth in the United States. It is unclear how consular officers at U.S. Embassies and Consulates will make that determination and whether they will attempt to verify pregnancies.

The revised guidelines which are expected to appear shortly in the Federal Register is the latest move by the Trump Administration to discourage birth tourism. The White House has previously voiced concern that pregnant women are coming to the United States to give birth and claim U.S. citizenship for their children. Currently, consular officers use their judgment when screening visa applicants and do not ask every woman applying for a visa if they are pregnant.

“Under this rule, if a consular officer has reason to believe that a B nonimmigrant visa applicant will give birth in the United States, the applicant is presumed to be seeking a visa for the primary purpose of obtaining U.S. citizenship for the child,” the proposed rule states. “To rebut this presumption, the visa applicant must establish to the satisfaction of a consular officer a legitimate purpose other than obtaining U.S. citizenship for the child.”

The proposed language would alter the current guidelines on issuing B visas to pregnant women.

“Any B nonimmigrant visa applicant who you have reason to believe will give birth during her stay in the United States is presumed to be traveling for the primary purpose of obtaining US citizenship for the child. The applicant can overcome this presumption if you find that the primary purpose is not obtaining US citizenship for the child.”

According to the Center for Immigration Studies, there are an estimated 33,000 births per year to women who arrived in the United States on a B visitor visa and departed the country after giving birth.

For more information about these new guidelines from the United States Department of State, please contact us at info@enterimmi.com.

USCIS Scheduled to Increase Family-Based Immigrant and Naturalization Application Filing Fees

 

United States Citizenship and Immigration Services (“USCIS”) has proposed to increase its filing fees for family-based immigrant visas and naturalization applications in 2020. Below are examples of the proposed fee increases.

Spouse and Family-Based Immigrant Visas:

Filing fees are scheduled to increase a nominal 3.74 percent from US$535 to US$550. Meanwhile, USCIS will decrease its processing fees for adjustment of status/green card applications 1.74 percent from US$1,140 to US$1,120.

Naturalization Applications:

Filing fees for those seeking to become U.S. citizens through naturalization are expected to increase 82.81 percent from US$640 to US$1,170. However, USCIS has proposed to remove the US$85 biometric processing fees reducing the total naturalization increase to 61.38 percent.

For more information about visa application filing fees, please contact us at info@enterimmi.com.

CBP Pilot Program to Assess DNA Collection Samples

 

United States Customs and Border Protection (“CBP”) has commenced a 90-day small scale pilot program aimed at collecting DNA samples from certain individuals who are currently in federal custody within the Detroit Sector and the Eagle Pass Port of Entry in Southwestern Texas.

The purpose of the pilot program according to CBP is to assess the operational impact of a Department of Justice proposed regulation amendment that requires DNA collection from certain individuals. Those DNA samples are to be submitted to the FBI’s Combined DNA Index System also known as CODIS. These regulations apply to individuals who are arrested, facing charges or are convicted and which includes U.S. citizens, lawful permanent residents and non-U.S. citizens who are detained by a U.S. government agency including Customs and Border Patrol.

The amendment proposed by the Department of Justice would likewise remove a provision which grants authority to the Secretary of Homeland Security to exempt the DNA collection requirement from certain aliens from whom DNA collection was previously not feasible because of limited resources. The amendment furthermore restores the Attorney General’s plenary legal authority to authorize and direct all federal agencies to collect DNA samples from all individuals arrested, facing charges, or convicted regardless of whether those individuals are U.S. citizens, provided that they are detained under federal authority.

For more information about the CBP Pilot Program, please contact us at info@enterimmi.com.

USCIS Scheduled to Increase Business Visa Application Filing Fees

 

United States Citizenship and Immigration Services (“USCIS”) is scheduled to increase its filing and processing fees for business visas in 2020. Below are examples of the proposed increased fees by visa category:

L-1 and H-1B Visas:

L-1 visa petitions (for temporary workers, non-immigrant) are scheduled to increase by 77 percent from US$460 to US$815, while H-1B petitions (for temporary employees in a specialty occupation) will rise 22 percent from US$460 to US$560.

High Skilled Employment Visas:

Petitions fees for O-1 visas for those of extraordinary ability/achievement will almost double, from US$460 to US$715. Filing fees for P (athletes/ entertainers), Q (cultural exchange) and R (religious workers) will increase from US$460 to US$705.

USCIS has also proposed to change the current premium processing system. While the fees will remain the same, adjudication will take up to 15 business days instead of its current 15 calendar days from date of receipt.

For more information about these visa categories and visa application filing fees, please contact us at info@enterimmi.com.

How long do I have to wait for my EB5 Petition to be approved?

 

Most of my clients ask me this question and there is a lot of confusion about the processing times visa waiting times.

As a refresher, there is a 3-step process to obtaining lawful permanent residence in the U.S. via the EB-5 immigrant investor visa category. First, an investor files a Form I-526 Petition (“Petition”) with the United States Citizenship and Immigration Service (“USCIS”). Once the Petition is approved, an investor and family may then proceed to the visa application step, or if the investor is in the United States, he or she may be eligible for Adjustment of Status. The third step is to file the Form I-829 Petition between the 21st and 24th month of the investor’s Conditional Permanent Residence period to remove the “condition” from the investor’s resident status.

So how long does it take to obtain approval for step 1, the I-526 Petition stage?

There are generally 3 ways you can estimate the average processing time for Petitions.

  1. Check with an experienced EB-5 attorney – First, you can check with an EB-5 attorney that represents many investors in many EB-5 projects (such as Enterline Immigration) to find out the actual average time in which Petitions are approved. It is important that the lawyer represents investors in more than just a few projects because some projects may experience different processing times for the Petitions.

Some projects may have faster processing of Petitions once a batch has been approved for that specific project. This would change the processing time to appear shorter than the average of all Petitions. On the other hand, Petitions that have been filed for a project that has not yet had an approved Petition, may take considerably longer to receive its initial approval, changing the processing time to appear longer than the average of all Petitions. A lawyer that files many Petitions in many different projects should be able to see the average processing times across all Petitions, not just in a few projects.

  1. The USCIS Check Case Processing Times page – The USCIS maintains a page in which petitioners may check the posted processing time averages {Check Case Processing page}

To use this page, select the Petition type (I-526) and choose the Field Office or Service Center. Note that only the Immigrant Investor Program Office is available for the I-526 Petition. Click “Get Processing Time”. The results will show like this:

Processing time for Immigrant Petition by Alien Entrepreneur (I-526) at Immigrant Investor Program Office

According to this information, (the first week of January 2020), it is taking an average of 32.5 to 49.5 months for USCIS to approve a Petition. This is of course well over 2 years for the earliest approvals. However, there are some underlying reasons why this posted processing time is so long which makes this not very accurate.

USCIS requests that petitioners and especially lawyers do not follow up with Petition status requests if a Petition is within the posted processing time. Once a Petition is 30 days outside of a posted processing time, then USCIS will respond to requests made about specific Petitions. If the Petition is within this posted processing time, USCIS will simply advise the inquirer that the Petition is within the posted processing time and to please be patient. Extending the posted processing time over such a long period curtails petitioners and lawyers from making inquiries until a Petition has been pending for years.

This also frustrates a petitioner that wants to file a Writ of Mandamus. A Writ of Mandamus is an order from a court to a government agency requiring that the relevant agency or official properly fulfill its official duties or correct an abuse of discretion. In the case of a Petition that has been pending for a long time, a Writ of Mandamus is asking the court to demand that USCIS make a decision on a Petition. If the Petition is still within the posted processing time, the court may decide not to approve the Writ. Based on these reasons, the posted processing times here are a strategic tactic by USCIS to reduce the number of inquiries sent to USCIS about Petitions and curtail the use of the Writ of Mandamus.

  1. Historical National Average Processing Time for All USCIS Offices

The third method of estimating the average processing time of a Petition is to check the “Historical National Average Processing Time for All USCIS Offices” page on the website {Historical Average Processing page}

This page lists the average processing times over the last few years. The table below shows that in Fiscal Year (“FY”) 2019, the average processing time for an I-526 Petition was 19.8 months.

As an average, this is much closer to what we see in reality.

So what do we see as an accurate average processing time? We see Petitions that are filed in projects that already have approvals taking as little as 12-15 months. We see Petitions that are filed with projects that do not yet have an approval taking around 24-30 months. Of course these are, again, averages, and the odd Petition that is approved in less than 12 months, or is still pending after 36 months, is common.

If you have questions about the EB-5 visa category of processing times, please contact us at info@enterimmi.com