Planning for the New H-1B Cap Registration System: Balancing Risks and Rewards of Preparation Versus Procrastination

USCIS announced that the H-1B cap registration period will open on March 1 and close on March 20, 2020, pursuant to the USCIS registration rule effective April 1, 2019. Employers will be required to submit a registration, along with a $10 registration fee, for each individual for which they plan to file an H-1B cap-subject petition. USCIS will then use the electronic registrations to randomly select enough registrations to meet the 85,000 available H-1B visas (65,000 regular cap and an additional 20,000 reserved specifically for master’s degree holders) and will announce the selections no later than March 31, 2020.

At first glance, this seems to be an easy way for employers to save money on legal fees by not preparing full petitions until the selection process is complete because employers would only incur legal fees for those selected in the lottery. However, the accelerated timeline and the lack of information about the new system and its implementation pose a substantial risk for H-1B petitions that are prepared after the selection process. Moreover, USCIS has yet to announce whether the filing window will begin on April 1, 2020 (as has been required in prior years), which would just be one day after their self-imposed deadline to announce the cap selections.  As a result of this highly unpredictable and untested new process, we have outlined H-1B preparation options below to allow employers greater flexibility when considering their preferred risk level.

FACTORS THAT MAY EFFECT THE SELECTION OF THE H-1B PREPARATION OPTIONS

While assessing which H-1B preparation option to select, we have delineated H-1B policy changes that should be considered. Since the introduction of the “Buy American and Hire American” Executive Order in April 2017, USCIS has proposed and implemented a series of changes to the H-1B visa program in the name of “protecting U.S. workers.” Many of the policies have placed additional burdens and costs on U.S. companies that are struggling to fill positions with qualified U.S. workers. These policy changes dictate that H-1B petitions need to be prepared thoughtfully and meticulously to secure success outcomes. The following salient H-1B policy changes are summarized below:

  1. According to a recent National Foundation for American Policy analysis of USCIS data, denial rates for H-1B petitions for initial employment (primarily new employees) quadrupled, rising from 6% in FY 2015 to 24% through the third quarter of FY 2019. The 12% denial rate for continuing employment [mostly for existing employees] is also historically high: 4 times higher than the denial rate of only 3% for H-1B petitions for continuing employment as recently as FY 2015.[1]
  2. USCIS plans to publish a rulethat would “revise the definition of specialty occupation . . . and revise the definition of employment and employer-employee relationship.” Employers should anticipate a far-reaching rule and these changes could alter adjudication standards.[2]
  3. The government has not been entirely clear about the post-selection process and timing, therefore creating great uncertainty about the time that would be allotted for H-1B petition preparation.
  4. Due to the potential for a condensed timeframe between lottery selection and the H-1B filing deadline, the influx of activity on the Department of Labor website that administers the certification of labor condition applications (LCA) could experience serious technical problems. The certified labor condition application is required for all H-1B petitions and H-1B petitions will not be accepted without a certified LCA.

Our team has analyzed the information distributed by DHS, USCIS, and the American Immigration Lawyers Association (AILA) to identify three pathways to navigating the H-1B registration system and the subsequent filing of selected petitions. Each option has different costs and risks associated. All options include the legal team’s review of the beneficiary’s identifying documents to confirm accuracy of the biographic information that is being entered. We would be happy to discuss what may work best for your business.

The differences in the legal fees in the options listed below are directly related to the additional expenses we would incur (such as overtime) for H-1B petitions prepared in a condensed timeframe.

REGISTRATION FEE FOR ALL OPTIONS:

LEGAL FEE                  $50.00 PER H-1B PETITION REGISTERED. THIS FEE WILL BE CREDITED TOWARD THE LEGAL FEE IF THE REGISTRANT IS SELECTED.

USCIS FEE                   $10 FOR EACH REGISTRATION

Option One: Prepare beneficiary and petitioner information for filing as usual

Risk Level: Low

Cost: Medium (Lower legal fee overall. The legal fee is split between two stages.)

  1. Legal fees for preparation of the H-1B petition are payable at the time the H-1B case is initiated. We will not collect the portion of the H-1B legal fee for finalizing the H-1B for submission until the H-1B petition is selected.
  2. If the H-1B petition is selected, we will then and only then collect the legal fees associated with finalizing the H-1B for submission.

Best for: Risk-averse companies that want to prepare petitions in advance of deadlines to prepare for scenarios such as system glitches, USCIS policy changes, etc. Good for companies who haven’t filed for an H-1B petition previously or when the H-1B petition is in support of high-priority candidates and want to ensure that given the adverse H-1B adjudication trends, that there is ample time to prepare the best possible submissions to USCIS.

What it entails: You would submit all employee documentation, petitioner information, job description and duties, and project details (if applicable) on a normal timeline consistent with an early April filing. We will review employee qualifications and the job duties to ensure H-1B compliance, examine documents to prove work availability to troubleshoot potential problems early, and review the totality of the case to ensure that the specialty occupation and employer-employee relationship requirements can be met when the case is selected for the cap. The legal fee due prior to registration includes the LCA filing (which will be done prior to the cap selection process to ensure timely filings once selections are made). The petition will be prepared prior to cap selection and we will finalize the H-1B petition for submission upon selection.

Option Two: Collect selected documentation for attorney review, file LCA prior to cap selection

Risk Level: Medium

Cost: Medium (Regular legal fees, we will only assess a legal fee for the time spent on document review and LCA filing)

Best for: Companies that are familiar with the H-1B process and can quickly share additional documentation after cap selection.

What it entails: We will review the basic position details in order to file the LCA prior to the cap selection process. However, we will not be reviewing in-depth project documents or preparing the petition until the cap selection is made. Additional review can be requested and billed at the attorneys’ standard hourly rates.

Option Three: Collect beneficiary information and prepare registration but no H-1B petition preparation until selection

Risk Level: High

Cost: High (A higher legal fee if selected for cap to accommodate the extra resources required to prepare selected filings in an expedited fashion.)

Best for: Companies who are willing to pay the higher legal fee but will only incur legal fees for the selected registrants.

What it entails: The legal team will review the beneficiary’s biographical documents to ensure accurate registration information, but will not prepare the petition, collect additional documents, or file the Labor Certification Application (LCA) unless the petition is selected for adjudication. For new beneficiaries or new positions, we can review the basic job duties and employee education and experience to determine if the position qualifies (for the attorney consultation rate). Given the limited timeframe to prepare and then file the H-1B petition, the company risks not being able to successfully resolve any problems in a timely manner prior to the filing deadline. Problem spotting and troubleshooting are much easier months before a deadline rather than a matter of days or weeks before filing. The Labor Condition Application certification processing takes seven days. The Department of Labor site may experience some technical issues during peak use and in the past has crashed during high volumes of certification requests. We will not be able to submit the H-1B petition without the certified LCA.

Additional Considerations During Decision Making

USCIS Policy Memo on Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs)

On September 11, 2018, USCIS enacted a policy memorandum that allowed adjudicators to begin denying applications, petitions, and requests without first issuing an RFE or a NOID in an attempt to eliminate frivolous or substantially incomplete filings, or “placeholder” filings. The memorandum states that if all initial evidence is not submitted during the original filing, USCIS may use discretion to deny the benefit request immediately. Some companies and attorneys were sending petitions with only the most basic information and expecting to respond to an RFE later, but that practice is now likely to result in an outright denial.

Reversal of Cap Selection to Benefit Advanced Degree Holders

The portion of the H-1B registration rule implemented in April 2019 reversed the order in which H-1B petitions were selected under the regular cap and advanced degree exemption. Under the new rule, USCIS counted all applicants towards the estimated number needed to reach the regular H-1B cap first and then selected applicants eligible for the master’s degree exemption. The switch resulted in master’s degree holders accounting for 63 percent of petitions being selected this spring, an 11 percent increase over 2018.

Some employers that have relied on bachelor’s degree holders will likely have a lower proportion of their registrations selected for adjudication, while employers concentrating on advanced degree holders will have better chances in the lottery.

Applicants with Foreign Degrees

While foreign degrees are acceptable as long as they are equivalent to U.S. degrees, USCIS requires credentials evaluations to be performed. If your foreign workers plan to utilize their foreign degrees to qualify for the regular or master’s cap, the legal team should evaluate their education and experience to determine whether a credentials evaluation is required. Once the credentials evaluation is received, the attorney should also compare the results with the H-1B position to determine the likelihood the individual qualifies for the role.

USCIS Filing Deadline

USCIS has yet to finalize the actual filing window(s) for cap cases selected for adjudication. Ideally the window will be several weeks spread out throughout the year (perhaps staggering employers in different windows). The filings must be early enough to allow plenty of time for RFEs and responses ahead of the October 1 start of the fiscal year, but late enough to allow some additional preparation after the cap selection is completed by March 31, 2020. If the department decides to maintain the beginning of April filing window for all employers, there will be a scramble to file LCAs, collect documentation, and finalize petitions in days or a couple of weeks. (For comparison, under the current cap selection process most companies begin preparing in January for the April 1 filing deadline.) USCIS stated that more information would be available in the “coming weeks” but it is risky for employers to keep waiting for more information without making some preparations in advance of the registration process.

Industry and Company-Specific Business Concerns

Challa Law Group is known for its specialized immigration strategies, customized to the business needs of our clients and constantly updated to meet the shifting immigration regulatory environment. We have filed H-1Bs for workers in healthcare, education, information technology, insurance, accounting, and other unique industries. Even within each field, each company has its own strengths and labor requirements that are important to highlight when filing petitions and applications for employees that will help you grow your business. Contact us at info@challalaw.com to discuss the challenges your company faces so we can help build your custom H-1B registration strategy.

[1] https://nfap.com/wp-content/uploads/2019/10/H-1B-Denial-Rates-Analysis-of-FY-2019-Numbers.NFAP-Policy-Brief.October-2019.pdf

[2] https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201910&RIN=1615-AC13


Public Charge Rule and Health Insurance Proclamation Remain on Hold by Courts

Last year we reported that a nationwide injunction temporarily placed the public charge rule on hold. The rule is being challenged in several lawsuits based on its potential to discriminate against immigrants from poorer nations. While we cannot predict the timeline for implementation, we can give you a sneak peek at the types of information we may be collecting in the future if the public charge rule remains unchanged and is eventually implemented.

On October 11, 2019 the Department of State issued an interim final rule to align with the Department of Homeland Security version of the public charge rule. The new rule expands on how consular officers determine whether an alien is ineligible for a visa because of his or her likelihood to become a charge and updates definitions of public charge, public benefit, household and receipt of a public benefit. The DOS rule was also developed “to avoid situations where a consular officer will evaluate an alien’s circumstances and conclude that the alien is not likely at any time to become a public charge, only for the Department of Homeland Security to evaluate the same alien when he seeks admission to the United States on the visa issued by the Department of State and finds the alien inadmissible on public charge grounds under the same facts.”

With this alignment of rules, hypothetically immigrants applying for visas abroad should be subjected to the same standards as those applying from within the United States. However, the Department of State is first seeking approval to utilize a new form before implementing any changes to internal processes and advises visa applicants to attend visa interviews as scheduled.

New Forms

USCIS released new editions of forms for H-1B workers, green card applicants, and their dependents only a few days ahead of the October 15th effective date of the public charge rule. The forms were released without allowing time for review, nor a grace period for the new forms to be implemented. Prior to the forms release, the American Immigration Lawyers Association (AILA) filed a separate lawsuit on Monday attempting to “ensure a workable transition over to new forms.” AILA President Marketa Lindt stated that the lack of notice “places unacceptable and unnecessary burdens on our communities and the workforce.” All forms are on hold due to the nationwide injunction.

The Department of State has not released any draft forms to-date, but USCIS released new versions of the following forms:

  • I-129 Petition for a Nonimmigrant Worker
  • I-539 Application to Extend/Change Nonimmigrant Status
  • I-539A Supplemental Information for Application to Extend/Change Nonimmigrant Status
  • I-485 Application to Register Permanent Residence or Adjust Status
  • I-944 Declaration of Self-Sufficiency (NEW)
  • I-912 Request for Fee Waiver

Under the new statute, DOS and DHS will consider age, health, family status, assets, resources, and financial status, and education and skills to determine whether an individual is likely to become a public charge. When DHS was enjoined from enforcing the rule, all updated public charge forms were removed from the USCIS website.

A new form, Form I-944, will be utilized for green card applicants filing Form I-485 (Application to Register Permanent Residence or Adjust Status) to prove they are not subject to the public charge ground of inadmissibility. The form will collect information based on the positive and negative factors related to an individual’s age, health, family status, assets, resources and financial status, education and skills, prospective immigration status and period of stay. The draft form instructions also state that USCIS could request certain individuals filing Form I-539 (Application to Extend/Change Nonimmigrant Status) or Form I-129 (Petition for a Nonimmigrant Worker) to also file the I-944 form, whether a principal or derivative beneficiary.

What are the negative factors that would weigh heavily in the determination that an individual is likely to become a public charge (and therefore inadmissible or ineligible to adjust or extend status)?

  • The alien is not a full-time student and is authorized to work but cannot show current employment, recent employment history, or a reasonable prospect of future employment.
  • The alien has received, or has been certified or approved to receive, one or more public benefits for more than 12 months in the aggregate within any 36-month period, beginning no earlier than 36 months before the alien applied for admission or adjustment of status on or after Oct. 15, 2019.
  • The alien has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with his or her ability to provide for him or herself, attend school, or work and he or she is uninsured and has neither the prospect of obtaining private health insurance nor the financial resources to pay for reasonably foreseeable medical costs related to a medical condition.
  • The alien has previously been found by an immigration judge or the Board of Immigration Appeals to be inadmissible or deportable based on public charge grounds.

What are the positive factors that would weigh heavily against a public charge determination?

  • The alien has household income, assets, resources, and support from a sponsor, excluding any income from illegal activities or from public benefits, of at least 250% of the Federal Poverty Guidelines for his or her household size.
  • The alien is authorized to work and is currently employed in a legal industry with an annual income of at least 250% of the Federal Poverty Guidelines for a household of his or her household size.
  • The alien has private health insurance appropriate for the expected period of admission, so long as the alien does not receive subsidies in the form of premium tax credits under the Patient Protection and Affordable Care Act to pay for such health insurance.

What benefits are exempted from the rule?

  • Emergency medical assistance
  • Disaster relief
  • National school lunch programs
  • Foster care and adoption
  • Student and mortgage loans
  • Energy assistance
  • Food pantries and homeless shelters
  • Head Start
  • Benefits received by noncitizen members of the U.S. armed forces serving in active duty or in Ready Reserve components (and by service member’s spouse and children)

Examples of benefits not considered:

  • Receipt of Medicaid for the treatment of an emergency medical condition
  • Services or benefits funded byMedicaid but provided under the Individuals with Disabilities Education Act
  • School-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under state or local law
  • Medicaid benefits received by an alien under 21 years of age
  • Medicaid benefits received by a woman during pregnancy and during the 60-day period beginning on the last day of the pregnancy.

 Tips for Visa Applicants to Avoid Classification as a Public Charge

As mentioned above, the public charge rule outlines some positive and negative factors in determining whether an individual is likely to become a public charge. Immigrants can take steps to improve their applications and petitions by evaluating where they may fall short of the new government standards. Below are some tips to prepare for the rule’s implementation:

  1. Maintain unsubsidized health coverage. Existing medical conditions without proof of insurance could be a red flag on your application. Maintain private health insurance or coverage through your employer to demonstrate you can pay for treatment if required. We also recently reported on a new Presidential Proclamation that requires proof of health coverage for immigrants entering the U.S. While this could also be challenged in court, individuals traveling abroad should carry a copy of their insurance card as a precautionary measure.
  2. Minimize financial liabilities. Individuals should carefully review all bills and financial obligations, as well as check their credit reports for accuracy. The public charge rule considers mortgages, car payments, school loans, credit card debt, and other liabilities that may influence an individual’s ability to cover all of their obligations.
  3. Obtain higher education or professional skills. One of the determining factors USCIS may use to determine public charge likelihood is the level of education and professional skills of an individual. Earning a degree at a higher education institution or working in a professional position helps demonstrate your continued economic and academic contributions to the United States.
  4. Increase household income to 250% of the Federal Poverty Guidelines. It may be difficult to boost your household income in the short-term, but it is worth taking time to review your professional and financial goals and consider strategies to exceed the federal poverty levels for your household size.
  5. Improve English language proficiency. Obtaining a completion certificate for an English as a Second Language (ESL) or otherwise demonstrating English proficiency is recommended prior to reaching the green card stage.

Stay tuned for more tips on improving your immigrant and nonimmigrant visa applications and petitions in preparation for the public charge rule.

Presidential Proclamation: Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System

An October 2019 presidential proclamation claims to protect the U.S. healthcare system and American taxpayers from the “burdens of uncompensated care” by preventing entry into the United States of “certain immigrants who lack health insurance or the demonstrated ability to pay for their healthcare.” The proclamation claims that an immigrant alien will financially burden the U.S. healthcare system unless covered by approved health insurance within 30 days of entry in the United States or unless the individual can prove he or she has the financial resources to pay for “reasonably foreseeable medical costs.”

Approved healthcare coverage includes:

  • An employer-sponsored plan, including a retiree plan, association health plan, and coverage provided by the Consolidated Omnibus Budget Reconciliation Act of 1985;
  • An unsubsidized health plan offered in the individual market within a State;
  • A short-term limited duration health policy effective for a minimum of 364 days or until the beginning of planned, extended travel outside the United States;
  • A catastrophic plan;
  • A family member’s plan’
  • A medical plan under chapter 55 of title 10, United States Code, including coverage under the TRICARE program;
  • A visitor health insurance plan that provides adequate coverage for medical care for a minimum of 364 days, or until the beginning of planned, extended travel outside of the United States;
  • A medical plan under the Medicare program; or
  • Any other health plan that provides adequate coverage for medical care as determined by the Secretary of Health and Human Services or his designee.

For immigrants over the age of 18, Medicaid coverage is not considered an approved healthcare plan. It’s also important to note that only unsubsidized plans offered in the individual market are approved under the proclamation. Subsidized coverage such as Medicaid, Children’s Health Insurance Program (CHIP), or other insurance plans with premium tax credits may be not be approved under the proclamation’s terms.

While this proclamation was set to become effective on November 3, 2019, like the public charge rule it faces legal scrutiny and court challenges just as other immigration policy announcements have encountered over the past couple of years. We could see court action on the proclamation in 2020. We will keep you posted as any new developments occur.


DHS Proposes Increased Fee Structure for Most Immigration Forms

At the end of 2019, USCIS announced a series of changes in a notice of proposed rulemaking in the Federal Register. The announcement focused on the fee changes, citing the fact that fees make up almost 96% of the USCIS budget. However, the proposed rule also addresses a series of other changes to forms, processes, and payments. USCIS has allowed a 30-day comment period, but the American Immigration Lawyers Association is one of 155 organizations that has requested a longer review and comment period. The letter references Executive Order 12866 that calls for “not less than 60 days” for public comment in most cases. In the letter to USCIS, the 155 organizations wrote:

“We are writing to respectfully request an extension of the comment period in view of the wide scope of this 300+ page rule and in keeping with past USCIS practices that provided the public a 60-day period to review and comment… Considering the complexity of the rule, its policy implications above and beyond fee changes, and the serious consequences of the changes proposed, the undersigned do not see a justification for deviating from the 60-day standard for comment periods, as designated in EO 12866 and EO 13563.”

Our team has reviewed the 314-page proposed rule and summarized some of the most important updates. In addition to the fees, the proposed rule also addresses the following topics:

Premium Processing

Currently, petitioners or applicants can pay $1,410 for certain employment-based petitions to be adjudicated within 15 calendar days. That fee is increasing to $1,440 for cases filed after November 29, 2019. The new rule proposes changing the 15-day calculation from calendar days to business days, while also excluding federal holidays and regional or national office closures due to weather or other causes.

The rule also proposes that the 15-day period be paused when USCIS issues a notification of an approval, denial, RFE, or NOID. The rule would also clarify that a new 15 business day period will begin upon receipt of an RFE or NOID response.

The rule claims that a change to using business days will allow USCIS additional time to complete processing on a premium processing petition and could reduce the need for USCIS to suspend premium processing when request filing volumes are high.

Payment Updates

USCIS has proposed to eliminate the $30 returned check fee because the fees associated with collecting the charge were higher than the returned check fees actually collected. However, petitioners and applicants should still ensure that adequate funds are available to avoid processing delays.

The rule also codifies the agency’s ability to reject a filing that includes checks more than a year old. Many institutions determine that checks over 6 months old are “stale” but USCIS recognizes that processing delays and filing schedules may cause files to have checks older than 6 months.

Another shift that has the potential to trip up applicants and petitioners is the proposal to update form instructions to only allow certain payment types for certain forms. For example, USCIS may determine that it only wants to accept credit or debit card payments for naturalization. USCIS could also decide that only a check or money order is acceptable payment for a certain form.  If this rule is implemented, extra precautions must be taken to review form instructions every time a case is filed to avoid a processing delay due to an incorrect payment type.

Citizenship Fee Increases & Elimination of Fee Waivers

DHS proposes to remove the N-400 fee waiver (Form I-942) and the reduced fee option “in order to recover full cost for naturalization services.” The rule also proposes to remove the fee waiver for the N-600, Application for Certificate of Citizenship. However, the removal of fee waivers would reduce the cost of Forms N-600 and N-600K because the increased fee would no longer need to cover the cost of the fee-waived form adjudication.

However, the N-400 would not be afforded the same price decrease as the N-600: DHS proposes to raise the naturalization fee an astounding 83% from $640 to $1,170. With the removal of the reduced fee option, naturalization may be financially out of reach for many families.

Fee waivers would be no longer available for the following forms:

  • Form I-90, Application to Replace Permanent Resident Card;
  • Form I-765, Application for Employment Authorization;
  • CNMI related petitions and applications;
  • Form I-485, Application to Register Permanent Residence or Adjust Status;
  • Forms for applicants exempt from the public charge inadmissibility ground;
  • Form I-751, Petition to Remove Conditions on Residence;
  • Naturalization and citizenship-related forms.

Green Card Fee Changes

Children under the age of 14 filing for a green card with their parents were able to pay a reduced fee of $750 instead of the $1,140 (plus $85 biometrics fee) currently charged to older applicants. All applicants would pay $1,120 under the new rule.

DHS also proposes to separate filing fees for Form I-765, Application for Employment Authorization, and Form I-131, Application for Travel Document, when filed concurrently with Form I-485, Application to Register Permanent Residence or Adjust Status, or after the Form I-485 has been accepted and is still pending. Current regulations allow individuals to pay the I-485 fee, but also file the I-765 and I-131 without additional fees. The rule claims that “un-bundling” these rates will reduce the cost of Form I-485. The proposed rate of $1,120 is $20 less than the current fee of $1,140.

H-1B and L-1A/B Process Updates

Employers are understandably concerned about the potential effect the proposed rule has on H-1B and L-1 employees. The rule proposes expanding the Public Law 114-113 fee of $4,000 to both H-1B and L-1 new employment as well as extensions of stay for employers that meet the 50 employee, 50% dependability test. The Public Law fee would apply regardless of whether the fraud fee applies. H-1B, L-1A, and L-1B extension requests filed by the same petitioner for the same employee or H-1B, L-1A, and L-1B amended petitions are currently exempt from the additional $4,000 fee.

DHS also proposes separating the I-129 into separate forms and eliminating the current supplements to the I-129 form. This will also allow DHS to charge separate fees for each form depending on the classification. DHS states that the current base filing fee of $460 doesn’t accurately capture the costs associated with adjudication since the fee is paid regardless of how many nonimmigrant workers will benefit from the petition or application, the type of worker evaluated, whether an employee is identified, or how long it takes to adjudicate the different nonimmigrant classifications. Under the proposed rule, the H-1B filing fee (Form I-129H1) would increase to $560 while the L-1 filing fee (I-129L) would rise by 77% to $815.

Biometrics Fees

The new rule proposes to incorporate biometrics fees into the underlying immigration benefit request to “simplify the fee structure, reduce rejections of benefit requests for failure to include a separate biometric services fee, and better reflect how USCIS uses biometric information.” The fee includes FBI name checks, FBI fingerprints, Application Support Center (ASC) contractual support, and biometric service management (including federal employees at ASC locations). The rule outlines that a separate biometric services fee will be retained for Temporary Protected Status, but requests for other immigration benefits will already have the biometric fee included.

Secure Mail Initiative

We have seen many clients suffer when the United States Postal Service (USPS) loses important immigration notifications. The proposed rule announces that USCIS will implement “Signature Confirmation Restricted Delivery (SCRD) as the sole method of delivery of secure USCIS documents. USPS states that Signature Confirmation requires that the recipient or another responsible person at the residence be present to sign for the item and then the sender will receive the signature and name of the recipient and the date, time, and location of the delivery. This service does not provide USPS tracking or provide a guaranteed delivery time.

Timeline for Rule Implementation

A notice of Proposed Rulemaking announces the agency’s plan to address a problem. After published in the Federal Register, the public can submit comments on the proposed rules so that the agency can consider the feedback when creating the final rule. The proposed rule “U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements” gives the public 30 days to comment. Members of the public may request additional time and the agency may extend a comment period based on the feedback. (We will keep you posted on whether the letter to USCIS by the 155 organizations has any impact on the comment period.)

Once the comment period has closed, the agency is obligated to carefully review all comments and then respond to any relevant comments. This could take an additional 30-90 days or longer. The agency may also issue a new proposed rule if issues arise in the comments or if the agency decides to change substantial portions of the rule. Once a final rule is published, the effective date is typically 30 to 90 days later. On average, from a proposed rule to its effective date, the time period is averaging approximately one year.

Lately, DHS has been unable to implement some rules (even after finalized) due to the ongoing lawsuits. If DHS attempts to implement this particular rule quickly (which significantly changes fees and forms) we predict there would be significant backlash from the legal community and the rule could see additional challenges in court.

Do you have questions on the proposed rule? Send us a note at info@challalaw.com.


DHS Announces Proposed $10 H-1B Registration Fee

Earlier this week, the Department of Homeland Security (DHS) proposed to amend regulations to require petitioners filing H-1B cap-subject petitions to pay a $10 registration fee for each registration submitted for consideration during the H-1B cap selection process. This aligns with previous American Immigration Lawyers Association (AILA) predictions based on responses to comments received on the original rule that partially took affect on April 1, 2019.

After numerous public comments, USCIS posted the final H-1B registration rule in January, requiring petitioners to register in a new system on behalf of cap-subject aliens. The rule also reversed the order in which H-1B petitions are selected for adjudication in an attempt to increase the number of H-1B visa holders with U.S. master’s degrees. While the rule was published on January 31, 2019, the electronic registration requirement was suspended until the FY 2021 cap season “to complete user testing and ensure the system and process are fully functional.”

Since President Donald Trump signed the “Buy American, Hire American” executive order in 2017, the Department of Homeland Security has made a series of changes to adjudication processes through policy memoranda. The executive order put a special emphasis on the H-1B program and directed the Secretary of Homeland Security to “suggest reforms to ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” USCIS Director Cissna stated:

“The registration system, once implemented, will lower overall costs for employers and increase government efficiency. We are also furthering President Trump’s goal of improving our immigration system by making a simple adjustment to the H-1B cap selection process. As a result, U.S. employers seeking to employ foreign workers with a U.S. master’s or higher degree will have a greater chance of selection in the H-1B lottery in years of excess demand for new H-1B visas.”

The new registration system would allow employers to wait until a registrant is selected for the cap before submitting the H-1B petition. Only basic information would be required during the registration process for the employer and beneficiary, including the employer’s name, EIN, address, authorized representative information, basic biographic information about the beneficiary, and notification of the employer’s attorney or accredited representative.

Once the registration system is implemented and this secondary rule (titled “Registration Fee Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap Subject Aliens”) is finalized, cap-subject petitions will only be accepted for adjudication if properly registered and selected for the fiscal year cap. The rule notes that the fee is an estimate of the cost to run the program and could change once more data is collected, likely after the 2020 cap season. The H-1B registration final rule estimated that petitioners as a whole will save $42.7 to $66.8 million annually based on the costs of unselected petitions, but would spend approximately $8.5 million to $12.9 million for registration costs (an average of $15.63 to $30.80 per registration) depending on the method the petitioner chooses to complete the registrations.

While we have not yet seen the proposed system, the functionality described in the regulations will require the petitioner to first register the company or organization and then separately register each proposed beneficiary, paying the $10 registration fee for each. DHS has acknowledged that registering electronically to determine selection for the cap (as opposed to filing a full paper petition) is a lower barrier to entry and some petitioners could choose to register a larger number of beneficiaries.

The proposed rule that would require a $10 registration fee is open for public comment until October 4, 2019. Since the registration fee rule is not considered a “major rule” it is not subject to a 60-day delay in effective date and DHS has stated the shorter comment period is necessary to implement the fee for the FY 2021 cap filing season. We expect that the rule will be published and effective prior to the 2020 cap season.

E-mail us at info@challalaw.com for questions about this article.


Public Charge Rule Increases Hurdles for Legal Immigration

 

The U.S. Department of Homeland Security (DHS) published the final rule titled “Inadmissibility on Public Charge Grounds” this week, changing how DHS determines if an individual is “likely at any time to become a public charge.” Thirteen states have joined to file a federal lawsuit, claiming that the rule has unlawfully expanded “the term ‘public charge’ – a previously rare designation that triggers exclusion from the United States – in a manner that is contrary to congressional intent and agency interpretation that has prevailed for nearly 70 years, and contrary to two 1996 federal statutes.” If the federal courts don’t take action within the next 60 days, the rule is set to become effective on October 15, 2019. Applications and petitions filed prior to October 15, 2019 will be adjudicated using the current regulations and guidance.

The new rule redefines many of the terms associated with the previous public charge standards. In an interview with NPR’s Morning Edition, acting USCIS Director Ken Cuccinelli undertook his own revisions to the famous Emma Lazarus poem engraved on a bronze plaque at the Statue of Liberty, stating “Give me your tired and your poor who can stand on their own two feet and who will not become a public charge.”

The current regulations interpret a public charge to be “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.” The new rule acknowledges that non-cash benefits were not previously included and in order to be self-sufficient, the rule redefines public charge:

“to mean an alien who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months.) This rule defines the term ‘public benefit’ to include cash benefits for income maintenance, SNAP, most forms of Medicaid, Section 8 Housing Assistance under the Housing Choice Voucher (HCV) Program, Section 8 Project-Based Rental Assistance, and certain other forms of subsidized housing.”

What does this mean for individuals seeking permanent residence?

While some categories, such as asylees, refugees, or other vulnerable populations (including T and U visa recipients) are exempted from the inadmissibility, other individuals applying for green cards, whether family or employment-based, may be scrutinized under the new public charge rule. The rule outlines a number of positive and negative factors that DHS will consider when determining if an alien is inadmissible.

Example: It is a positive factor if the alien is between the ages of 18 and 61, but negative if he or she is younger than 18 or older than 61. A heavily weighted negative factor is when an individual has work authorization, but cannot demonstrate current employment, recent employment history, or a reasonable prospect of future employment.

A new form, Form I-944, will be utilized for green card applicants filing Form I-485 (Application to Register Permanent Residence or Adjust Status) to prove they are not subject to the public charge ground of inadmissibility. The form will collect information based on the positive and negative factors related to an individual’s age, health, family status, assets, resources and financial status, education and skills, prospective immigration status and period of stay. The draft form instructions also state that USCIS could request certain individuals filing Form I-539 (Application to Extend/Change Nonimmigrant Status) or Form I-129 (Petition for a Nonimmigrant Worker) to also file the I-944 form, whether a principal or derivative beneficiary.

What are the negative factors that would weigh heavily in the determination that an individual is likely to become a public charge (and therefore inadmissible or ineligible to adjust or extend status)?

  • The alien is not a full-time student and is authorized to work but cannot show current employment, recent employment history, or a reasonable prospect of future employment.
  • The alien has received, or has been certified or approved to receive, one or more public benefits for more than 12 months in the aggregate within any 36-month period, beginning no earlier than 36 months before the alien applied for admission or adjustment of status on or after Oct. 15, 2019.
  • The alien has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with his or her ability to provide for him or herself, attend school, or work and he or she is uninsured and has neither the prospect of obtaining private health insurance nor the financial resources to pay for reasonably foreseeable medical costs related to a medical condition.
  • The alien has previously been found by an immigration judge or the Board of Immigration Appeals to be inadmissible or deportable based on public charge grounds.

What are the positive factors that would weigh heavily against a public charge determination?

  • The alien has household income, assets, resources, and support from a sponsor, excluding any income from illegal activities or from public benefits, of at least 250% of the Federal Poverty Guidelines for his or her household size.
  • The alien is authorized to work and is currently employed in a legal industry with an annual income of at least 250% of the Federal Poverty Guidelines for a household of his or her household size.
  • The alien has private health insurance appropriate for the expected period of admission, so long as the alien does not receive subsidies in the form of premium tax credits under the Patient Protection and Affordable Care Act to pay for such health insurance.

What benefits are exempted from the rule?

  • Emergency medical assistance
  • Disaster relief
  • National school lunch programs
  • Foster care and adoption
  • Student and mortgage loans
  • Energy assistance
  • Food pantries and homeless shelters
  • Head Start
  • Benefits received by noncitizen members of the U.S. armed forces serving in active duty or in Ready Reserve components (and by service member’s spouse and children)

What are some examples of benefits not considered by the new standards?

  • Receipt of Medicaid for the treatment of an emergency medical condition
  • Services or benefits funded byMedicaid but provided under the Individuals with Disabilities Education Act
  • School-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under state or local law
  • Medicaid benefits received by an alien under 21 years of age
  • Medicaid benefits received by a woman during pregnancy and during the 60-day period beginning on the last day of the pregnancy.

Stay tuned for more information and tips on how to prepare for the rule’s effective date of October 15, 2019.

 


5 Things You Need to Know About PERMs

 

Workplace Stability

Sponsoring your employees for permanent residence allows you to extend the H-1B visa beyond the typical six year maximum validity period. When the employee is the beneficiary of an approved I-140 petition, the H-1B visa can continue to be extended while the employee waits on a visa to become available. The first step to the permanent residence process is the PERM labor certification, which takes months to complete due to regulatory time frames for the various steps.  In this stage, you must prove to the Department of Labor that the foreign national doesn’t harm the interests of U.S. workers. 

Bonus Round: 3 PERM Tips 

  1. Consult with an attorney to determine the best employment-based category.It may seem more appealing to go with a “second preference” or EB-2 visa, but backlogs for foreign nationals from some countries could cause processing times to be longer than the “third preference” or EB-3 category.
  2. Spend time discussing the job description with your attorney. It may be tempting to match a PERM description to a beneficiary’s qualifications, but an attorney can advise on the balance between generic and specific requirements.
  3. Plan ahead for the I-140 stage. The employer must prove its ability to pay the employee the prevailing or offered wage starting with the priority date. Your attorney can discuss the types of evidence required to prove the company’s financial ability to pay. 

Challa Law Group is your one stop shop for H-1Bs, L-1s, PERMs, and adjustments of status. Contact us to discuss how we can streamline the immigration process for your employees, giving you a more stable and engaged workforce to achieve your company’s goals.

 

 

 


Regulatory Agenda Gives Clues to DHS Priorities and Upcoming Changes to H-1B and H-4 Visas

Regulatory Agenda Gives Clues to DHS Priorities and Upcoming Changes to H-1B and H-4 Visas

This spring, the final H-1B rule partially went into effect for the FY 2020 cap season. The rule changed the way petitions were selected for the H-1B cap and also set forth the conditions for a new H-1B registration system. After significant public feedback, DHS decided to delay the registration system until the FY 2021 cap season. There have been a number of changes discussed that would affect the H-1B and H-4 visa programs, so we wanted to summarize and update you on the most impactful proposals.

Updated I-539 Form: No Courtesy Premium Processing for H-4 Spouses

H-4 spouses no longer enjoy courtesy premium processing when the H-1B petition is upgraded to the faster processing option. As a reminder, USCIS updated the Form I-539 during the busy weeks of this year’s cap season, making the following changes:

  • Every co-applicant on the primary Form I-539 must submit and sign a separate Form I-539A. Parents or guardians may sign on behalf of children under the age of 14.
  • Every applicant and co-applicant must now pay separate $85 biometric services fees (except certain A, G, and NATO nonimmigrants).
  • Every applicant and co-applicant will receive biometric services appointments, regardless of age, containing an individual receipt number. The appointments will be scheduled at the Application Support Center (ASC) closest to the primary applicant’s address. (Co-applicants who wish to be scheduled at a different ASC location should file a separate Form I-539.)

Proposed Rescission of H-4 EAD 

In 2015, DHS published a final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants seeking employment-based permanent residence. That rule is now being reconsidered as the Trump administration signaled its intent to remove work authorization for H-4 dependents in late 2017. The proposed rule has moved forward to review by the Office of Management and Personnel, but has likely been delayed by ongoing litigation.

While the final rule will not be available until it is published in the Federal Register, we expect that the rule will provide a timeline for no longer accepting H-4 EAD applications and that it will determine when current H-4 EAD holders will need to stop working (unless obtaining an alternative work-authorized status). If the rule is rescinded, there could be additional litigation to challenge the ruling. Individuals currently working on the H-4 EAD should consider an independent work-authorized status if available.

I-129 Tips: Rejection for Incomplete Information & Updated Filing Addresses Without Announcement

Companies use Form I-129, or Petition for a Nonimmigrant Worker, to file for workers to come to the U.S. to temporarily perform services or labor. Many common visas utilize the form including but not limited to the H-1B, E-1/E-2, L-1A/L-1B, O-1A/O-1B, and P-1 visas. USCIS announced that beginning on Monday, August 5, 2019, Form I-129s without a petitioner or applicant’s name and primary U.S. office address will be rejected without adjudication or review. Currently I-129 forms can be rejected for a missing signature, checks made out for the wrong fees, or an unauthorized third party signing instead of a petitioner.
 
The announcement specifically notes that the primary U.S. office address cannot be the address of the counsel or any clients. According to the announcement, including clients or attorney addresses instead of the primary U.S. office address “creates unnecessary delays in the adjudication of Form I-129 and may result in its rejection.” In most cases, the Form I-129 can simply be refiled with missing information and fees, but it is important to consider status issues and planning ahead for a timely filing.
In July 2019, certain I-129 filing addresses were updated on the USCIS website, without prior notice or announcement. It appears that the changes affected cap-exempt petitions for extension of stay, change of status, concurrent employment, consular notification, and amended petitions, but excludes those filed for cap-exempt entities. Petitions were previously accepted at Vermont and California Service Centers, but will also be directed to the Nebraska and Texas Service Centers going forward.

H-1B Registration Rule Update: Registration Fee May Apply

After numerous public comments, USCIS posted the final H-1B registration rule requiring petitioners to register in a new system on behalf of cap-subject aliens. The rule also reverses the order in which H-1B petitions are selected for adjudication, potentially increasing the number of H-1B visa holders with U.S. master’s degrees. While the rule was published on January 31, 2019, the electronic registration requirement has been suspended until the FY 2021 cap season “to complete user testing and ensure the system and process are fully functional.”

Since President Donald Trump signed the “Buy American, Hire American” executive order in 2017, the Department of Homeland Security has made a series of changes to adjudication processes through policy memoranda. The executive order put a special emphasis on the H-1B program and directed the Secretary of Homeland Security to “suggest reforms to ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” USCIS Director Cissna stated:
“The registration system, once implemented, will lower overall costs for employers and increase government efficiency. We are also furthering President Trump’s goal of improving our immigration system by making a simple adjustment to the H-1B cap selection process. As a result, U.S. employers seeking to employ foreign workers with a U.S. master’s or higher degree will have a greater chance of selection in the H-1B lottery in years of excess demand for new H-1B visas.”

The new registration system would allow employers to wait until a registrant is selected for the cap before submitting the H-1B petition. Only basic information would be required during the registration process for the employer and beneficiary, including the employer’s name, EIN, address, authorized representative information, basic biographic information about the beneficiary, and notification of the employer’s attorney or accredited representative.

This spring, DHS published the Unified Agenda of Regulatory and Deregulatory Actions which included mention of a fee for H-1B registrations for petitioners seeking to file H-1B petitions on behalf of cap subject individuals. According to the American Immigration Lawyers Association (AILA), the fee will likely be between $10 and $20 for each registration, based on the response to comments received on the original rule. AILA also predicts that the proposed rule could be published this summer for implementation prior to the FY 2021 H-1B cap filing season begins.

Contact Challa Law to discuss how the changes to the H-1B and H-4 visa programs could affect your company.


Review of the Proposed Employment-Based Immigration Bills in U.S. Congress: Potential Backlog Reduction for EB-2, EB-3, and EB-5 Visa Categories

These bills have the potential to reduce or eliminate the backlogs for the EB-2 and EB-3 categories that are critical to your company’s success. Did you know that an H-1B visa can be extended beyond six years if the individual also has an approved I-140 as part of the green card application process? Contact us today to discuss starting the permanent residence process for the resources who are critical to your bottom line.

Review of the Proposed Employment-Based Immigration Bills in U.S. Congress: Potential Backlog Reduction for EB-2, EB-3, and EB-5 Visa Categories

A series of immigration bills are making their way through Congress with some bipartisan support. The U.S. House of Representatives passed the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044) on July 10, 2019 with 224 Democrats and 140 Republicans supporting the bill. However, a companion bill in the Senate called the Fairness for High-Skilled Immigrants Act of 2019 (S.386) is facing some opposition from several senators who have placed holds on the bill, which may prevent the bill from getting to the floor for a vote. Senator Rand Paul objected to moving the bill forward in June and a few weeks later introduced an immigration bill titled the Backlog Elimination, Legal Immigration, and Employment Visa Enhancement (BELIEVE) Act (S. 2091).

Senator Paul’s bill would eliminate the per-country limits for all employment-based categories and would increase the number of green cards available each year. He also proposes to exempt certain health care workers and some spouses and children from counting against the limits on employment-based visas. The bill would also allow spouses and children of E, H, and L visa holders to pursue their own employment. The bill currently has no co-sponsors and some believe it could be a distraction from the Fairness for High Skilled Immigrants Act of 2019, preventing the Senate from moving forward.

The House version of the Fairness for High-Skilled Immigrants Act would eliminate the per-country limits on all employment-based immigration categories and would increase per-country limits for family-based categories from 7 percent to 15 percent. The bill also allows for a three-year transition period and includes a “do no harm” provision which would attempt to ensure that beneficiaries of employment-based petitions approved prior to the bill’s enactment receive a visa no later than they otherwise would have if the bill had not been enacted.

The Senate companion to the bill has similar provisions, but instead of providing the transition period to the EB-2, EB-3, and EB-5 categories like the House bill does, the transition does not apply to EB-5 visa applicants. However, the “do no harm” provision is included in the Senate version, which would provide some protection to EB-5 visa applicants who had an approved petition prior to the bill’s enactment.

The Senate version also makes some changes to the H-1B visa program, due to an amendment by Senator Chuck Grassley. His amendment adds the requirement for internet postings to a DOL website, requires an administrative fee for LCAs, and make several updates to allow the USCIS and DOL to ensure compliance.

If the Fairness for High-Skilled Immigrants Act passed in the Senate, a conference committee would need to be assembled to reconcile the two versions of the bill. If the bill passed the House and Senate, it may be challenged by President Trump, who could choose not to sign the bill into law.

In summary, here are some of the anticipated impacts of the bill on employment-based visa applicants:

  • The elimination of the per-country limits would move green card wait times for those who have waited the longest in queue, especially those from India and China in the EB-2, EB-3, and EB-5 visa backlogs.
  • Within 5-7 years of the transition period, the employment-based green card backlog will likely end.
  • This comes at the expense of individuals in other countries who previously did not have long wait times – it is estimated that all categories will have some wait times.
  • Executive Director of the National Foundation for American Policy (NFAP) Stuart Anderson predicts that up to 40,000 green cards could go to Indians in the EB-2 and EB-3 visa categories in FY 2023 and 2024.
  • Anderson also predicts that during 2023, all Indians in the EB-3 backlog may have received green cards, but that would leave around 290,000 in the EB-2 backlog. Some may choose to refile under the EB-3 category and by FY 2027 or 2028, the entire backlog for Indian nationals who were waiting prior to the bill’s enactment would be eliminated.

The bill could also have the following impacts on family-based visa applicants:

  • The increase of the per-country limits from 7% to 15% (15,820 to 33,900 from a single country annually) would result in more visas being allocated to individuals from backlogged countries.
  • The new limits could help individuals born in Mexico and Philippines, and to a lesser degree, India, who have been waiting the longest in family-sponsored visa categories.
  • Individuals in other countries will likely have increased wait times as the backlogs are cleared.

New Citizenship Test to be Piloted This Fall

Naturalization Civics Test Questions to Change

For many immigrants, U.S. citizenship is the ultimate accomplishment. Naturalization can take decades if you first entered the country as a student or foreign worker. As the wait times for green cards have steadily increased (to over ten years for some categories), citizenship remains elusive for many. In order to become a U.S. citizen after immigrating, an individual must be a green card holder for a minimum of three to five years (depending on how the green card was obtained) and then they must pass civics and English tests to demonstrate their commitment and loyalty to the United States.

Earlier this year, former USCIS Director Francis Cissna issued a memorandum titled “Revision of the Naturalization Civics Test” to associate directors and program office chiefs to notify them of upcoming changes to the civics test. The memo also stated that the test will be revised every ten years going forward, formalizing a process that has been done intermittently in the past. The last major revision happened in 2009 when USCIS implemented standardized test forms for the English and civics test requirements.

A new announcement today confirmed that a naturalization test revision working group formed of USCIS agency members has been updating test questions since December 2018. The group is also exploring changes to the speaking portion of the English test, which also includes reading and writing portions. USCIS has set the implementation date for December 2020 or early 2021 but plans to pilot the program this fall. We will keep you posted on any major updates to the naturalization tests that we see as a result.

Cissna’s memo describes citizenship as “the culmination of an immigrant’s journey to fully join our nation and live with us in a common bond. It is the most meaningful immigration benefit our country offers.”

Are you ready to complete your immigration journey? Contact Challa Law to start your citizenship application today.


EB-5 Rule Finalized: Changes to Minimum Investments, TEA Designation, Regional Centers, & More

 

On July 24, 2019, the Department of Homeland Security published the final “EB-5 Immigrant Investment Program Modernization” rule, making sweeping changes to the investor visa program starting on November 21, 2019. Some of the changes are good news for immigrant investors, including the new priority date retention policy. Other updates such as the increased minimum investment levels and more restrictive Targeted Employment Area (TEA) designation process will pose some challenges to new investors hoping to earn a green card.

Here are the major changes the rule makes to the EB-5 investor visa program:

Priority dates can be retained for certain EB-5 investors.

  • A petitioner with multiple approved immigrant petitions as an investor can utilize the earliest qualifying priority date.
  • This situation might occur when an investor must file a new petition due to a regional center termination or a material change in the business conditions underlying the qualifying investment.
  • Once the conditional green card is issued, the priority date cannot be retained for another petition. You must meet the criteria for removing the conditions to receive your regular green card.
  • The priority date retention is generally available except in cases of fraud or misrepresentation.

Minimum investments have increased.

  • Standard EB-5 investments will increase from $1 million to $1.8 million.
  • Targeted Employment Area (TEA) investments will increase from $500,000 to $900,000.
  • Minimum investment amounts will now automatically increase for inflation every five years.

The TEA designation process has been shifted to DHS.

  • States will no longer have the ability to designate areas as high-unemployment areas.
  • DHS will now review all requests for TEA designations.
  • Only cities and towns with populations of 20,000 or more outside of MSAs may qualify as a specific and separate TEA based on high unemployment.
  • DHS is finalizing a census tract process for making special TEA designations.
  • DHS will amend its regulations so that a TEA may consist of a census tract or contiguous census tracts in which the new commercial enterprise is principally doing business if the new commercial enterprise is located in more than one census tract; and the weighted average of the unemployment rate for the tract or tracts is at least 150 percent of the national average.
  • DHS will also amend its regulations so that a TEA may consist of an area comprising the census tract(s) in which the new commercial enterprise is principally doing business, including any and all adjacent tracts, if the weighted average of the unemployment rate for all included tracts is at least 150 percent of the national average.

Family members must file their own petitions to remove conditions (if not included in the petition filed by the principal investor).

  • The rule clarifies that any derivatives must file separate petitions if they are not included on the principal investor’s petition to remove conditions.
  • There will be more flexibility in interview locations related to the Form I-829.

I’ve already invested and filed Form I-526. Does the new rule affect me?

As an existing investor you will benefit from the priority date retention. There are a variety of factors that could cause the basis for your petition to no longer qualify for the removal of conditions on the green card. If you chose to file an additional I-526 based on a new qualifying investment, you would need to meet the new minimum investment levels, but could retain the priority date of your first petition. Please note that once a conditional green card is issued, the priority date cannot be retained for another petition.

What do new investors need to know?

New investors will still be subject to the underlying requirements of the EB-5 visa, including making a necessary investment in a commercial enterprise in the United States and creating 10 full-time jobs for qualified U.S. workers. If you are planning to invest and file prior to the November 21, 2019 effective date, you can still utilize the lesser investment amounts of $500,000 (for a TEA investment) or $1 million (standard EB-5 investment). We recommend starting that process now if you plan to file before the rule goes into effect, as it could take quite some time to gather the appropriate documentation and transfer the funds to a project.

Request some free information on the EB-5 visa by emailing us at info@challalaw.com.

You can also download the following resources: