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US green card waiting times lengthen for many

The US State Department predicts longer green card waiting times for many immigrants. Charlie Oppenheim, chief of the department’s Visa Control and Reporting Division, recently shared his analysis of current trends and future prospects with respect to immigrant visa supply and demand.

EB1—Extraordinary ability; outstanding professors/researchers; multinational managers/executives

The employment-based first preference category is not expected to become currently available again for any country of birth. While people born in most countries are predicted to see movement of up to three months per month, Indian-born can anticipate little if any movement. India and China both have waiting times that are years longer than other countries.

EB2—Advanced degree; exceptional ability

EB2 is expected to remain currently available for all countries of birth, except mainland China and India, but that could change, as it did in the current fiscal year. The demand for Indian-born is so great that the predicted movement is only up to one week per month, while China is predicted to move up to two months per month.

EB3—Professionals; skilled workers; unskilled/other workers

The prediction for EB3 is similar to EB2, but with slow and irregular forward movement likely for China and the Philippines. India is predicted to show little to no movement until January 2020. The more limited supply of the “other workers” category makes it likely that it will not remain currently available for the entire fiscal year.

EB4—Religious workers; special immigrant juveniles

The prediction is for EB4 to remain currently available for most countries of birth. El Salvador, Guatemala and Honduras are likely to see little if any movement because of the large demand in the special immigrant juvenile category. Mexico is predicted to see movement of up to four months.

EB5—Immigrant investors

The EB5 category is expected to remain currently available for most countries of birth; mainland China, Vietnam and India will continue to experience longer waiting periods. Mr. Oppenheim did not predict availability.

Note that the October 2019 Visa Bulletin’s EB5 Regional Center final action date is reported as unavailable because Congress and the administration have not yet extended that program. This program has always been temporary in nature and the government always has extended it, often after expiration. In contrast, traditional EB5 remains available.

Family-based preference categories

There are no limits on US citizens sponsoring their spouse, parents and unmarried children under age 21, so these are not reported in the Visa Bulletin.

For October, the F2A (family second preference) category for green card holders sponsoring their spouse and unmarried children under age 21 is reported as current across all countries of birth. Mr. Oppenheim predicted that demand will increase in late 2019 or early 2020, and the category can expect a Final Action Date by February 2020.

Background

The Department of State’s monthly online Visa Bulletin reports on the current wait times for the US immigrant visas (green cards) that are subject to numerical limits. The date the government receives an immigrant visa petition is considered the priority date. The immigrant’s country of birth is another factor impacting how long it takes to immigrate, although a married couple immigrating together can use either spouse’s country of birth for the entire family.

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US green card waiting times lengthen for many

The Government of Canada implements its New Preclearance Act

Effective August 15, 2019, the Preclearance Act of 2016 gives enhanced powers to US Customs and Border Protection officers working in preclearance areas located in Canada, much to the chagrin of many concerned Canadians. The Act was implemented in furtherance of the Preclearance Agreement, a treaty signed by Canada and the US in 2015. Please click here to read the Dentons client alert.

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The Government of Canada implements its New Preclearance Act

Federal legalization of hemp in the United States and its effect on US immigration laws

US immigration laws eased after the US 2018 Farm Bill removes hemp (and extracts of hemp such as CBD), from the list of controlled substances that have immigration consequences. Signed into law by President Trump on December 20, 2019, removes a major roadblock that hindered foreign investment and job creation in the US lawful hemp industry. Please click here to read the full article.

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Federal legalization of hemp in the United States and its effect on US immigration laws

Final rule amending regulations governing EB5 program increases minimum investment amounts, gives USCIS sole authority to designate targeted employment areas

USCIS has issued new regulations that makes changes to important provisions of the employment-based fifth preference (EB5) immigrant investor visa program. The changes will require that ongoing EB5 investment projects review, and likely modify, their business plans, economic analyses and legal documents (e.g., private placement memoranda, subscription agreements) to reflect the new requirements.

Effective date

The new regulations apply to all EB5 petitions received by USCIS on or after November 21, 2019. There is expected to be a rush of new EB5 investments and petitions filed with USCIS before November 21, 2019, as petitioners seek to avoid the increased investment requirement.

Required investment will increase

The minimum investment required to qualify for EB5 will generally increase to $1.8 million from $1 million. The required minimum investment required for investments made in targeted employment areas will increase to $900,000 from $500,000.

In addition, the required minimum investment will increase in future years to adjust for inflation.

This change will decrease the number of immigrant investors interested in investing in America. The number of new jobs created through EB5 for American workers will decrease by at least 50%. American businesses seeking financing through EB5 will find it harder to obtain such investment, but will need to attracted fewer individual EB5 investors to raise the same amount of investment.

As noted above, the increased investment requirement apply only to EB5 petitions received by the USCIS on or after November 21, 2019. There is no increase for individuals, whose petitions are approved, or pending, prior to that date.

Changes to targeted employment areas

Under current law, the power to designate targeted employment areas (TEAs) is held by each state. The new regulations will strip the states of this power and give USCIS sole authority to designate a TEA. This change is likely to (1) increase the time it takes to receive a TEA designation and (2) decrease the likelihood of receiving a TEA designation. 

Under current regulations, TEAs must be comprised of census areas that are contiguous to each other. Under amended regulations, all of the census areas must be directly contiguous to the census area where the EB5 job creating business is located. The impact of this change will be to greatly restrict the number of locations that qualify as a TEA.

As a result of this change, it will be harder for projects in the US to attract EB5 investors and fewer parts of the US will be able to create jobs for American workers using EB5 funds.

A TEA is a census area whose rate of unemployment exceeds the US national average by 150 percent or more. In addition, two or more contiguous areas whose combined unemployment rate hits that benchmark can be designated a TEA. The latter is affected under the new rule, which takes the authority to designate that group away from the state government and gives it to USCIS, while at the same time limiting what census areas can be combined into the group.

Priority date retention

US law limits the number of people who can immigrate each year through EB5. The limited supply of EB5 visas is allocated in part based on the date the EB5 petition was received (priority date). Under current regulations, if an EB5 investment materially changed or an immigrant wanted to change investments after the petition was granted, the immigrant investor might lose that priority date and their immigration would be delayed. The new regulations preserve the original priority date for investors with multiple approved EB5 petitions.

This is a positive change that will help a small subset of EB5 immigrants to avoid even longer immigration waiting times when their investment plans change over time.

In general

The EB5 immigrant investor program was created in 1990. EB5 grants resident status to investors and their accompanying immediate family members, provided they satisfy a number of requirements which, for the most part, remain unchanged by the new regulations. The final rule does not, for example, change the requirements that:

  • An EB5 investor create at least 10 full-time equivalent (FTE) jobs for US workers.
  • The jobs must either be created before the petition is filed or the investor must submit a comprehensive business plan that shows the jobs will be created before the conditional basis of resident status is removed.
  • The investor show that the source of the invested funds is “lawful.”
  • The invested funds be at risk in an active commercial business located in the US.

For more information

The full text of the final rule was published in the Federal Register and is available online, click here to read.

For more information, please contact your lawyer at Dentons or the authors.

Matt Schulz and Mengci Shao are members of Dentons Global Mobility Practice and are based in the firm’s Silicon Valley office.

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Final rule amending regulations governing EB5 program increases minimum investment amounts, gives USCIS sole authority to designate targeted employment areas

Cannabis in the United States and its implications in naturalization applications

In response to requests from state and local officials for clarification and adjustment of United States Citizenship and Immigration Services policies negatively impacting the legal immigration status of individuals who work or have worked in the legal cannabis industry, USCIS has updated its Policy Manual—but has not retreated from its position that cannabis-related activities will likely bar a lawful permanent resident of the US from naturalization, even if such activities take place in a state that has legalized cannabis. For a deep dive into the updated manual—including cannabis-related activities which, while not grounds for deportation may still be grounds for inadmissibility if the LPR travels abroad and attempts to re-enter the US—please click here.

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Cannabis in the United States and its implications in naturalization applications

How US federal cannabis legalization would affect US immigration law

During the 115th US Congress, several bills were introduced to legalize marijuana at the federal level. Those receiving the most attention were: (1) the Strengthening the Tenth Amendment Through Entrusting States Act (STATES Act); (2) Marijuana Justice Act of 2017/Marijuana Justice Act of 2018 (Marijuana Justice Act); and (3) the Marijuana Freedom and Opportunity Act (Marijuana Freedom Act). While all three died when the Congress ended on January 3, 2019, they are likely to be reintroduced (without change) during the 116th Congress. For our analysis of how they might affect the ability of foreign nationals to enter the United States, click here.

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How US federal cannabis legalization would affect US immigration law

New Zealand citizens may now pursue E1/E2 visas


Citizens of New Zealand and the United States making a business investment in the other country or engaging in trade between the two countries are now eligible for new immigration benefits. On June 10, 2019, US consular officials in New Zealand began processing E-1 treaty trader and E-2 treaty investor visa applications filed by New Zealand citizens. 

These visas are allowed under the Knowledgeable Innovators and Worthy Investors (KIWI) Act, which was signed into law by President Trump in August 2018.

To qualify for E-1 classification, the applicant must:

  • Be a citizen of New Zealand and the US business must be at least 50 percent owned by citizens of New Zealand;
  • Carry on “substantial trade,” as measured by a history of continuous flow of sizable international trade items involving numerous transactions over time;
  • Carry on “principal trade,” meaning at least 50 percent of the business’s international trade is between the US and New Zealand; and
  • Develop and direct the enterprise through either (i) at least 50 percent ownership of the enterprise or (ii) employment in a supervisory capacity or where the applicant brings essential skills. 

To qualify for E-2 classification, the applicant must:

  • Be a citizen of New Zealand and the US business must be at least 50 percent owned by citizens of New Zealand;
  • Invest substantial capital in an active, commercial enterprise in the US at a level that is above that which could merely support the applicant and his or her accompanying family members; and
  • Develop and direct the enterprise through either (i) at least 50 percent ownership of the enterprise or (ii) employment in a supervisory capacity or where the applicant brings essential skills. 

Successful applicants will be issued a multiple-entry visa, valid for up to five years and be allowed an initial stay of up to two years, with extensions available. There is no limit on the total time spent on E-visa status, but E- visa holders must be able to prove their intention to depart the US at the end of their authorized stay, whether through status expiration or termination. The applicant’s spouse and unmarried children under 21 are eligible for the same visa and period of stay. The spouse also may apply for an employment authorization document and family members may attend school.

Although the KIWI Act is not a bilateral treaty extending equivalent benefits to US citizens. For Americans interested in New Zealand, it should be noted that New Zealand already has an immigrant investor visa, an entrepreneur visa and a global impact visa that collectively offer broader benefits to citizens of the US and other countries than the KIWI Act provides New Zealanders.

The visa benefits for citizens of New Zealand and the US are a welcome addition that will benefit both countries. Please contact Dentons for more information.

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New Zealand citizens may now pursue E1/E2 visas

Verifying work authorization under USCIS’ OPT cap-gap rule

There are special rules that act to automatically extend the US employment eligibility of qualified F-1 foreign student visa holders beyond the period initially authorized. The rule that relates to F-1 visa holders seeking to change to H-1B work visa status is referred to as “cap-gap” because it is intended to fill the gap between the date the OPT (optional practical training) period would otherwise expire and the date that the new H-1B employment authorization starts.

The H-1B allows employers to temporarily employ a foreign national in a specialty occupation. The US Citizenship and Immigration Services (USCIS) grants H-1B status. There is a limit, or “cap,” on the number of individuals who can receive H-1B status, and H-1B employment generally begins on October 1, the start of the federal government’s fiscal year. 

OPT is an employment authorization for F-1 international students who have completed their studies. Typically, the OPT is granted for 12 months. STEM majors working for eligible employers may qualify for extensions totaling an additional 24 months. At the completion of the study program or the end of OPT, F-1 students have a 60-day grace period to take the steps necessary to either maintain their legal status or depart the US. For the non-STEM majors, that means their OPT status expires well before the October 1 start date of H-1B, hence the “cap-gap.”

To deal with this situation, USCIS’ OPT cap-gap rule automatically extends an eligible F-1 student’s status to bridge the gap between the end of F-1 status and start of H-1B status, thereby allowing the student to remain in the US during the “gap.”

The cap-gap extension applies if all three of the following conditions are met:

  • An employer timely files a Form I-129, Petition for Nonimmigrant Worker, with USCIS requesting a change of the student’s status to H-1B. Note: A petition requesting consular process does not qualify.
  • The H-1B petition asks for an October 1 start date.
  • The student’s status, including any applicable grace period, ends between April and September 30. 

How the OPT cap-gap protection is triggered by different events during the H-1B process

  • When an H-1B petition on behalf of the student has been filed with USCIS but not yet receipted, the student’s employment authorization automatically extends to June 1. While the extension is automatic, students can request from their school’s office of international students office an updated Form I-20 to serve as proof of legal status.
  • While the H-1B is pending with USCIS for processing, the student’s employment authorization automatically extends to September 30. Again, the student may, but is not required to, obtain an updated Form I-20 from the international students’ office. 

If USCIS denies the H-1B, or if the H-1B petition is returned as “not selected,” then there is no longer any cap-gap employment authorization. If the F-1 student’s OPT already expired, then the student has 60 days to depart the US or take other steps to maintain lawful status.

Employers are advised to request updated Form I-20s from their employees on OPT status as proof of valid work authorization, and to take note of the expiration dates.   

Note that if the student’s OPT expires before April 1 and the student is already in the 60-day grace period when the H-1B is filed, the cap-gap only extends the F-1 status, not OPT employment authorization. The student may remain in the US, but without OPT work authorization. 

Employers must verify the employment authorization for all employees in the US. Failure to do so may result in monetary penalties against the employer. Please contact Dentons for more information. 

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Verifying work authorization under USCIS’ OPT cap-gap rule

DHS publishes final rule governing FY 2020 H-1B cap season. Now it’s time to prepare your cap-subject petitions

Last week, the Department of Homeland Security (DHS) published the final rule amending regulations governing H-1B cap-subject petitions. For a detailed discussion of the proposed rule, see our recent blog post here. The final rule, however, makes some changes different from those set out in the proposed rule.

No online registration for FY 2020 H-1B cap season

Though suggested in the proposed rule, the final rule clearly states that an online registration requirement will not be implemented for the FY 2020 cap season. The agency explains that before implementation, it wants to complete user testing and other evaluative tools to ensure the system and process are fully functional. Employers should be ready in 2020 for the FY 2021 H-1B cap season, when the process change will likely take place. US Citizenship and Immigration Services (USCIS) will announce the implementation in advance of the cap season in which it will implement the requirement.

Changing the order of the H-1B lottery selection for the FY 2020 H-1B cap season

Currently, H-1B cap-subject petitions filed under the advanced degree cap are selected first, and unselected petitions get a second bite at the apple—an opportunity to compete, along with the regular cap petitions, for one of the 65,000 visas available for workers holding bachelor’s degrees. The final rule reverses this order. Effective April 1, 2019, USCIS will first select 65,000 petitions from all submissions, including both regular and advanced degree petitions. USCIS will then run a second lottery to select enough qualifying petitions to meet the 20,000 cap exemption for individuals with advanced degrees from US institutions. DHS states that the change will increase the chances of H-1Bs being awarded to individuals with US master’s degrees or higher by up to 16%, or 5,340 workers. Time will tell. Why DHS thinks random holders of US master’s degrees will better serve American competitiveness than will holders of bachelors’ degrees in targeted fields of study, such as STEM, or who otherwise meet the goals articulated in President Trump’s April 2017 executive order directing an interdepartmental review of the H-1B visa program, was not addressed in the final rule.

Dentons analysis

Employers need to submit full H-1B cap-subject petitions during the first week of April. Please contact your lawyer now to be fully prepared.   

Meanwhile, Dentons will continue to closely monitor any changes to the regulations surrounding the H-1B program, particular regarding the pre-registration requirement, and update you as needed.

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DHS publishes final rule governing FY 2020 H-1B cap season. Now it’s time to prepare your cap-subject petitions

Does USCIS interpret its regulations consistently and correctly?

Non-immigration case before SCOTUS could change immigration law

In December of last year, the US Supreme Court agreed to review Kisor v. Wilkie, a case that could have a major impact on immigration law. At issue is the degree of deference a court must accord an agency’s interpretation of its own ambiguous regulation.

How much deference courts should afford agencies in interpreting their own regulations is a central question in administrative law. It determines how much an agency is allowed to stray from the original wording of a regulation it promulgates before it becomes necessary to issue a new regulation.  

It is dangerous to grant agencies unfettered discretion based on the assumption that their personnel will wisely and fairly carry out their duties. Changing presidential administrations often result in new agency directors and the likelihood that political beliefs will change how existing regulations are interpreted.  

If an agency seeking to revise a regulation follows the legal requirements of the Administrative Procedure Act (APA), there will be notice of proposed rulemaking and a comment period to identify any issues. There’s also a published regulatory history from which to glean meaning and intent. Too often, however, federal agencies, rather than comply with the APA, seek to regulate through policy interpretation memoranda.

On its face, Kisor v. Wilkie has nothing to do with immigration law. In 2006, James Kisor a Vietnam War veteran reopened a claim for disability benefits, citing new evidence that supported a diagnosis of PTSD. While the Department of Veterans Affairs (VA) agreed with the diagnosis and approved the 2006 claim, it declined to grant him retroactive benefits based on his initial 1983 claim, asserting that he had failed to present “relevant” service records required under VA regulations governing reconsideration of benefits claims. The Court of Appeals for the Federal Circuit deferred to the VA’s interpretation of its own regulation and found in the agency’s favor.

In the context of immigration, the US Citizenship and Immigration Services (USCIS), a branch of the Department of Homeland Security (DHS), is the federal agency that oversees lawful immigration to the United States. Under current case law, significant deference is granted to USCIS’ interpretation of its own regulations. This deference has allowed the agency to change certain visa programs over time, often without issuing new regulations but instead relying on policy memoranda to implement what increasingly seems to be an agenda driven by White House politics rather than good policy.

For example, President Donald Trump’s “Buy American, Hire American” 2017 executive order, which, among other things, directed DHS, in coordination with other agencies, to review immigration-related policies, led to USCIS modifying many of its immigration policies in 2017 and in 2018, oftentimes by the mere publication of a memo or a press release rather than by going through the APA’s required process. Dentons’ immigration team covered several of these:

  • In October 2017, USCIS issued a policy memorandum reversing the burden of proof and eliminating the prior practice of deferring to previous approvals in the adjudication of petitions to renew H, L and other non-immigrant visas. The idea was that USCIS would accept the original determination as correct and would not review all the visa requirements again. With the elimination of this practice, visa holders merely petitioning for an extension now have to prove every criteria applicable to their visa category, even though USCIS already decided that they met such criteria. Effectively, extensions now require the same level of documentation as the original petition. This change has led to extensions being denied, thus creating confusion among alien workers.
  • In April 2018, USCIS updated its webpage for Optional Practical Training Extension for STEM Students (STEM OPT), providing that the training experience of STEM OPT workers may not be conducted at the place of business or worksite of the employer’s clients or customers.
  • In May 2018, the USCIS changed the way it calculates the accrual of unlawful presence for nonimmigrant students and exchange visitors (F, J and M visas, including F-2, J-2 and M-2 dependents). The changes increased the likelihood that individuals in these nonimmigrant visa categories would have problems with future immigration benefits. (See our previous posting “Stricter unlawful presence rules for foreign students and exchange visitors”).
  • In May 2018, USCIS revised its Policy Manual, announcing it would no longer count the jobs created for US workers through tenant occupancy of EB5 properties, which effectively reduced the amount of immigrant investor funds available to create jobs for US workers. (See our previous posting “No more EB5 job creation through tenant-occupancy models: New USCIS policy reduces availability of immigrant investor funds to create jobs for American”).
  • In November 2018, USCIS published a new policy memorandum explaining how to calculate the 12 months of employment abroad, a key requirement under the L-1 intracompany transfer visa program. (See our previous posting “How to count to 12: USCIS clarifies L1A visa requirements”).
  • In November 2018, DHS published its mid-year regulatory agenda, which included a proposed rule to revoke the H-4 employment authorization final rule. If adopted, the proposed rule is expected to become effective in the first half of 2019 and would impact all of the more than 100,000 individuals currently holding an H-4 employment authorization document. (See our previous posting “Proposed end of H-4 employment authorization likely to affect over 100,000 families”).

While USCIS’ frequent and often far-reaching policy changes created lots of business for lawyers in 2018, the agency’s unpredictability and inconsistent application of the law has created a tremendous burden on US employers and their foreign-national employees and families, as well as for US business developers seeking foreign investment and foreign investors and families.  

Critics of the deference principle have argued that it effectively allows agencies such as the USCIS to write overbroad and substantively vague rules with the expectation that they can fill in any gaps later using interpretive rules, unchecked by notice and comments. They are urging the Supreme Court to reverse the current precedent favoring judicial deference, which would force USCIS to issue clearer and more detailed regulations, thus providing  more agency transparency and accountability. The Supreme Court will hear Kisor v. Wilkie in the spring—oral arguments have not yet been scheduled—and will likely make a ruling later this year.

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Does USCIS interpret its regulations consistently and correctly?