EB-5 Visas and Priority Dates

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As EB-5 Visas Become Popular, Priority Dates Backlog

As of May 1, 2015, only Chinese born EB-5 applicants who have priority dates before May 1, 2013 can file to adjust their status if they are lawfully in the United States or have an interview scheduled in China for an EB-5 immigrant visa. What this means is that EB-5 Chinese applicants with pending adjustment of status (Green Card / Permanent Residence) priority dates on or after May 1, 2013 will have to wait until those dates become current. The Visa Bulletin, issued monthly by the Department of State, will update priority dates monthly. For Chinese applicants waiting abroad for their priority date, they will have to wait for them to become current before the immigrant visa interview. It is uncertain how long the waiting line is.

 

There are 2,525 EB-5 visas available for the remainder of the Fiscal Year(ends September 30), with a total of 10,224 available for the entire fiscal year. Chinese born individuals have accounted for nearly 89% of the approved EB-5 visas this year, continuing a trend that has become popular since 2008.

 

The EB-5 visa is a relatively new path to permanent residence, in which an individual can invest one million dollars (or $500,000 in a targeted employment area) to stimulate an enterprise directly or through a regional center. For example, some of Bakery Square in Pittsburgh was funded through Chinese investors using the EB-5 visa. The EB-5 visa is complicated and fraught with legal intricacies. There are also peripheral issues, such as finder fees and SEC disclosure that need to be considered. The money being invested in the enterprise must be traced to legitimate sources. It was scarcely used before 2008, but has become immensely popular among Chinese investors seeking US permanent residence since then. Fiscal Year 2014 was the first year that the EB-5 reached its limit, and it looks poised to accomplish that this year.

DACA In State College Tuition

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A judge in Maricopa County Arizona ruled on May 5 that immigrants granted deferred deportation status are eligible for in-state college tuition. This is a state court decision that will save thousands of dollars for DREAMers attending Maricopa County Community Colleges. Arizona is often the arena for contentious immigration litigation and legislation. Maricopa County is also the home of famed anti-immigration  Sheriff Joe Arapaio. This ruling could set a precedent for other schools and other states to level in-state tuition for their students with deferred action.

The basis of Superior Court Judge Arthur Anderson’s decision is that federal law determines who is lawfully present in the United States. Arizona has a voter-enacted law, Proposition 300, which demands that individuals seeking a federal, state, or local public benefit must submit specific documentation to prove lawful presence in the United States. There are also prohibitions from Arizona’s controversial SB1070 law, which was largely but not entirety stricken down by the United States Supreme Court.

The DREAMers have been clamoring for comprehensive immigration reform that will grant them a pathway to citizenship, as long as they meet certain requirements. Their argument is that they were brought to the United States as young children and have grown up knowing themselves to be Americans. Many DREAMers are unaware of their status until they start applying for colleges and realize that they do not qualify for scholarships and federal benefits because of their status.

Deferred action is not immigration status that grants green cards or a path to citizenship. It is a temporary allowance of authorized stay without many benefits. Individuals can obtain work authorization. Deferred Action for Childhood Arrivals (DACA) was announced on June 15, 2012 and is available for periods of two years. Expanded DACA and Deferred Action for Parents of Americans (DAPA) are being challenged by 26 states in Texas v. United States. The case is currently awaiting a decision in the Fifth Circuit after a federal judge in Texas blocked implementation of the programs because they were announced without following the Administrative Procedural Act’s Notice-and-Comment.

5th Circuit Hears DACA/DAPA

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The US Court of Appeals for the Fifth Circuit heard the Department of Justice’s appeal of the temporarily blocked expanded DACA and DAPA programs last Friday. A judge for a Texas federal court blocked expanded DACA and DAPA in February, and he blocked requests for lifting the order. The Circuit is expected to deliver a ruling soon. Observers expect a 2-1 ruling on behalf of the State of Texas, who brought the lawsuit against the Department of Justice.

 

We have been following this case closely over the past two months. We have keenly followed President Obama’s executive actions, which are not meant to be permanent solutions. Congress has lawmaking ability through the separation of powers of Article I of the Constitution. The president has the authority to issue executive orders, which every president has done and every president since Dwight D. Eisenhower has issued executive orders to grant relief to immigrants.

 

Expanded DACA grants deferred action to a wider range of individuals than the original version of DACA does. DACA is still in effect and can be applied for today. Expanded DACA tacks on a third year and eliminates the age requirement. DAPA is deferred action for parents of US citizen or Permanent Resident children. Neither DAPA nor DACA provide a pathway to citizenship or Green Cards. The underlying goal of US immigration is family reunification and these executive orders support that goal, especially in the absence of legislative enactments. The DREAM Act was first proposed in 2001 and remains on the legislative sidelines.

Record Number of H-1Bs

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And We Broke a Record

USCIS announced that it has received a record number of H-1B applications for Fiscal Year 2016. Over 233,000 applications were filed by employers petitioning for prospective foreign national employees. Some of those prospective employees are actually already in the employ of their companies, but they need the H-1B to continue their work authorization. There is a 65,000 cap on H-1B visas, plus an additional 20,000 visas that are reserved for individuals with Master’s degrees from a United States institution of higher learning. For example, an engineer with a Master’s degree from Carnegie Mellon University would be placed in the Master’s lottery first, whereas an engineer with a Bachelor’s degree from the University of Pittsburgh would be subject to the 65,000 cap.

USCIS conducted the lottery yesterday. This means that nearly 150,000 visa applicants will be rejected without consideration.

The H-1B visa is a critical aspect of our immigration employment system. To obtain a visa, the occupation in question must be a specialty occupation, and it must require a college degree or the equivalent thereof to perform the duties of the occupation. It also requires an employer to be the petitioner and pay fees that the employer would not have to pay for an American worker. They are highly sought out because they afford up to six years of status, as well as an opportunity for a Green Card.

H-1B applications are filed in the first week of April in anticipation of the beginning of the Fiscal Year in October. Employers and prospective H-1B employees nervously wait for whether they are selected in the lottery for about a month, as notices will begin going out in the middle of May.

There is a 36% of being selected for the lottery. Technology and immigration groups clamor year after year for improvements to the H-1B visa, especially in terms of raising the cap. Their champions in Congress push for bills like Innovation Squared, but they rarely make it out of committee. H-1B opposition emanates from the fear that foreign nationals are snatching American jobs from American citizens and permanent residents. The rebuttal often cited by H-1B proponents is that the economy is dynamic and H-1B jobs are “job-creating.”

USCIS will continue to accept H-1B applications for the following purposes:

  • Extend the amount of time for an H-1B worker (6 years is generally max, except for I-140 filed or pending)
  • Change the terms of employment for current H-1B workers (transferring areas)
  • Allows current H-1B workers to change employers
  • Allows current H-1B workers to work concurrently in a second H-1B position
  • Statutorily cap-exempt employers (universities, university-affiliated)

DACA/DAPA Stayed

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Judge Refuses to Lift Temporary Order Against Expanded DACA and DAPA

Judge Harlan of the Southern District of Texas decided against lifting his order from February, ensuring that the expanded DACA and DAPA programs remain unavailable. In February, the federal judge had blocked those two programs from going into effect, agreeing with plaintiff Texas that the president’s executive actions had not followed the proper procedure.

President Obama’s executive orders on immigration have been controversial, but his administration has argued they are necessary in response to congressional inaction on immigration reform. Immigration reform has been a prime legislative topic for years, but repeated attempts to pass laws have faltered. We have followed the news closely since the anticipation of executive action in the fall of 2014. The executive orders are widespread, covering everything from L-1B visa guidance to National Interest Waivers for entrepreneurs. The orders receiving the most attention and currently in litigation are Expanded DACA and DAPA.

DACA has been instituted as a program since June 2012. Expanded DACA and DAPA were additions to bolster protections for individuals without status who are low priorities for removal. Expanded DACA starts the clock of physical presence and continuous residence from January 1, 2010, allows for three years of work authorization and removal protection, and eliminates the age requirement original DACA has. DAPA is for the parents of US citizens or Permanent Residents and would be a boon for families in which a parent or parents are unauthorized. The clock of physical presence and continuous residence also starts from January 1, 2010 for that program.

The US Court of Appeals for the Fifth Circuit is expected to hear the appeal next week. The mayors of 73 cities and counties, 109 immigration law professors, advocacy groups, 181 members of Congress, 15 states and Washington DC have filed their amici briefs in support of the Department of Justice, which is defending the programs.

We will provide more news next week, as the case develops.