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Carl Shusterman's Immigration Update


  1. Immigration Law Changes in Budget Bill

    On December 16, it was announced that members of Congress had finalized a 2,009-page budget bill. The bill is expected to be approved and signed by President Obama before the end of the year.

    The bill contains a number of immigration law changes, each of which is listed below:

    1. H-1B and L-1 Filing Fees - Additional filing fees will be imposed on companies which employ 50 or more workers in the US, and whose workforce consists more than 50% of H-1B and L-1 employees. The additional fees amount to $4,000 per H-1B petition and $4,500 for each L-1 petition. These fees will also apply to extensions as well as to first-time petitions. These fees will remain in effect until September 30, 2025.

    2. EB-5, Conrad 30, E-Verify and Non-Ministerial Religious Workers Each of these programs will be extended to September 30, 2016 without any material changes. Changes to the EB-5 program are essential. It is anticipated that Congress will amend the EB-5 investor program sometime in 2016.
    3. H-2B Workers Returning workers who were counted against the 66,000 cap in fiscal years 2013-15 will not be subject to the fiscal year 2016 cap. Employers will be required to pay workers at the prevailing wage or the actual wage, whichever is higher.
    4. Visa Waiver Program (VWP) The rules will be tightened on this program which allows tens of millions of people from 38 countries to enter the US as visitors without visas each year. For example, persons who visited Syria, Iraq, Iran, Sudan (or any country designated by DHS) since March 2011 will be barred from visiting the US without a visa. These immigration law changes are meant to promote security and increase "vetting" of foreign visitors to the United States.

  2. New Rule Will Allow Thousands to File I-485s in October

    Thanks to President Obama, a new rule will take effect on October 1, 2015 which will allow thousands of immigrants with backed-up priority dates in the employment-based and family-based categories to apply for adjustment of status (as well as for EADs and Advance Paroles) even though their priority dates are not yet current.

    And not only the principal immigrant but their spouses and children will be able to apply for these benefits.

    This is, without a doubt, the most positive executive action to benefit the legal immigration system that I have seen in the 40 years that I have been practicing immigration law!

    To show how this works, here is an example:

    Teresa, a registered nurse, is the wife of an H-1B professional whose employer has yet to sponsor him for permanent residence. That means that Teresa is unable to take advantage of the new rule which allows certain H-4 spouses to apply for EADs.

    However, a hospital submitted an I-140 visa petition for Teresa in December 2014. Unfortunately for Teresa, the EB-3 category for Filipino professionals has retrogressed more than 8 years. So, she will not be able to apply for a green card until the year 2023, right?

    Wrong! Under the new Obama policy, any Filipino with an EB-3 priority date before January 1, 2015 will be able to apply for adjustment of status starting on October 1, 2015. Teresa and her husband (and any children born abroad who are living lawfully in the U.S.) can submit their applications for adjustment of status (I-485 packets) in October 2015 and obtain their EADs and APs within 90 days.

    This rule applies whether the I-140 is approved or is still pending. So waiting past October for the I-140 to be approved is not a good idea. Filing dates, like priority dates, often retrogress.

    Professionals from India

    A computer programmer from India is in H-1B status. The EB-2 current priority date for India is backed up until May 1, 2005. However, if his priority date is prior to July 1, 2011, he can file an I-485 in October. Things are not nearly as favorable if he is in the EB-3 category, but are still better than before the rule. The EB-3 current priority date for India is backed up until March 8, 2004, but if his priority date is before July 1, 2005, he can file an I-485 in October.

    Professionals from China

    An H-1B professional from China has an approved I-140 was a priority date in 2013. The current EB-2 priority date for China in October is January 1, 2012. However, if his EB-2 priority date is before May 1, 2014, he can file his I-485 in October. The current EB-3 priority date for China in October is October 15, 2011. Under the new rule, if the professional's priority date is before October 1, 2013, he can submit his I-485 in October.

    EB-5 Investors from China

    The new rule is a huge benefit for Chinese investor since the EB-5 category for Chinese will be October 8, 2013 in October. Many investors are worried about their children aging out. However, children's ages are frozen once they file for adjustment of status or immigrant visas. Any Chinese person in the EB-5 category with a priority date before May 1, 2015 will be able to apply for a green card in October.

    Updated 05-04-2018 at 10:10 PM by CShusterman

  3. EB-5 Regional Center Program: Fast Lane to Permanent Residence
    Congress created the EB-5 immigrant investor program in the early 1990s, and set aside 10,000 visas per year for this program, in order to encourage foreign-born persons to invest money in the U.S. economy and to create jobs for U.S. workers. The program requires persons to invest $1 million in a business and to hire a minimum of 10 U.S. workers. If the person invests in a rural area or in an area with high-unemployment, the amount of investment is $500,000.

    During the first few years, the program failed to attract a large number of investors, so in 1993, Congress amended the law to create the Regional Center Pilot Program. This program which has been renewed on a number of occasions, and which was recently extended until 2014, permits private and governmental entities within the U.S. to establish regional centers and allows foreign investors who invest $500,000 and create, either directly or indirectly, 10 jobs, to qualify for permanent residence in the U.S. EB-5 investors in regional centers are reserved 3000 visas.

    The procedure for all EB-5 cases requires that the investor who has met the requirements of the law submit an Immigrant Petition by Alien Entrepreneur (Form I-526) to the USCIS. Immediately upon approval of the petition, the investor and his immediate family may apply for adjustment of status if they are present in the U.S. in nonimmigrant status, or for immigrant visas if they are residing abroad. Similar to marriage cases, an EB-5 investor receives a two-year conditional green card. Prior to the expiration of the two-year period, the investor is required to submit a Petition by Alien Entrepreneur to Remove Conditions (Form I-829) after which the USCIS issues a ten-year green card.

    Until recently, less than 1,000 persons per year were granted permanent resident status in the EB-5 category. Yet, despite the low numbers, a 2003 report by the government's General Accounting Office (GAO) estimated that EB-5 immigrants had invested over one billion dollars in U.S. businesses.

    In fiscal year 2009, the number of green cards which were granted under the EB-5 program almost tripled from the year before from 1,443 to 4,218. Although this was a dramatic increase from previous years, it represents less than half of the 10,000 visas allocated to the EB-5 program annually. We expect a large increase in EB-5 usage in this fiscal year. Why? Compared with most other family-based and employment-based categories where the backlogs often range from a few years to more than 20 years, those qualifying under the EB-5 category can obtain permanent residence very rapidly.

    The number of government-designed regional centers has also expanded recently. A 2007 list published by the USCIS contained 20+ regional centers. The latest list which was last updated on the USCIS website on January 5, 2010 lists almost 80 regional centers in more than 20 states. Indeed, there are over 20 government-designated regional centers in the State of California alone. We link to the USCIS Chart listing all approved regional centers from our "Green Cards through Investment" page at

    During our present economic downturn, the EB-5 program has created thousand of jobs for U.S. workers in a wide variety of industries. On December 31, 2009, National Public Radio broadcast a segment entitled "Recession Fuels Spike in Foreign Investment Visas". We link to this broadcast from our "NPR" page at

    Some persons are concerned about whether their I-526 and I-829 petitions will be approved. In the past, the EB-5 program was subject to much controversy and even to federal lawsuits. In 1998, the federal government suddenly, and without advance notice, changed the rules making it more difficult for investors to qualify for green cards under the EB-5 program. Four years later, Congress passed legislation to help investors who were victims of the new rules. The legislation provided that implementing regulations were to be issued in 2003. To date, the USCIS has yet to promulgate these regulations.

    Despite this checkered history, those who have invested in regional centers during the past few years are gaining permanent residence at a record pace. The USCIS, in a meeting with the American Immigration Lawyers Association held on December 14, 2009, revealed that of the most recent I-526s and I-829s decided by the agency, over 80% had been approved. Some of the regional centers claim that their investors have perfect or near-perfect approval rates.

    Investors should not depend on solely upon immigration attorneys to guide them in selecting from among the myriad of approved regional centers. Law school did not train us to evaluate investment opportunities. However, once you have selected a regional center to invest in, let your immigration attorney guide you in complying with applicable immigration laws and procedures.

    If you can afford it, the EB-5 Regional Center Program may be your fast lane to a green card.

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    Updated 12-02-2013 at 04:46 PM by CShusterman

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