Immigrant visas are available to certain family members of U.S. citizens and lawful permanent residents, as well as investors, employees, and prospective employees of American businesses. Recent announcements from federal immigration authorities and others have brought changes to immigrant visa procedures, as well as the potential for additional changes in the future. One recent change affects all immigrant visa categories, while others specifically apply to the EB-5 program for immigrant investors.
Procedural Changes at USCIS
In September 2015, U.S. Citizenship and Immigration Services (USCIS) announced new procedures for determining the availability of immigrant visas. Previously, visa bulletins issued by the U.S. Department of State (DOS) identified “final action dates” for each immigrant visa category. This date represents the priority date for immigrant visa petitions that the government is currently processing.
Many employment-based categories are current, but low-priority family-based applications can have distressingly long backlogs. According to the November 2015 visa bulletin, the government is now processing applicants from the Philippines in the fourth preference group—siblings of adult U.S. citizens—with priority dates in June 1992.
Starting with the October 2015 visa bulletin, the government is also identifying “dates for filing applications” in each category. This represents the earliest date that people can apply for an immigrant visa. This might not relieve many of the family-based backlogs—the date identified for fourth-preference Filipino applicants is January 1993—but it helps employers and immigrant employees get a sense of when they can expect a decision.
Criticism of EB-5 Program from GAO
The fifth-preference category of employment-based immigrant visas, also known as EB-5 visas or investor visas, is available to individuals who have invested, or are investing, at least $1 million in capital in a “new commercial enterprise.” They must show that their investment will create at least 10 permanent jobs in the U.S. See 8 U.S.C. § 1153(b)(5).
The Government Accountability Office (GAO) released a report in August 2015 identifying problems in the EB-5 program that need Congress’ attention:
– Despite positive steps by USCIS in detecting fraud, the agency lacks the ability to conduct risk assessments;
– New information systems that would enable improved fraud detection and risk assessment have been repeatedly delayed;
– USCIS lacks an effective “methodology for reporting program outcomes and overall economic benefits”; and
– High-level USCIS officials have created an appearance of favoritism towards certain petitioners and stakeholders.
Uncertainty Over How the EB-5 Program Defines “Capital”
Immigration regulations define “capital,” for the purposes of the EB-5 program, to include “indebtedness secured by assets owned by the alien entrepreneur,” as long as the investor is “personally and primarily liable” on the debt, and no assets of the new business are used as collateral. 8 C.F.R. § 204.6(e). A non-precedential opinion from the Administrative Appeals Office (AAO) of USCIS, issued in May 2014, held that an immigrant may not claim the proceeds of an unsecured loan as “capital” in an EB-5 petition.
In other areas of immigration law, proceeds obtained through unsecured debt could still count towards an investment benchmark. DOS regulations governing E-2 investor visas, for example, include both debt secured by personal assets and “unsecured loans, such as a loan on the alien’s personal signature,” since both involve a risk of loss to the investor. 9 FAM 41.51 N8.1-2(a)(2). Despite this, however, USCIS formalized the AAO’s interpretation in a memorandum issued in April 2015.
Green card lawyer Samuel C. Berger practices in the New York City and Northern New Jersey region. We represent individuals who would like to immigrate to this region, people who want to bring a loved one to the U.S., and businesses who want to hire a worker from abroad. Contact us today online or at (212) 380-8117 to schedule a confidential consultation to see how we can help you.
More Blog Posts:
U.S. Supreme Court Rules that State Department Does Not Have to Tell U.S. Citizen Why It Denied Visa Petition for Her Husband, New York & New Jersey Immigration Lawyer Blog, August 13, 2015
How the Supreme Court’s Same-Sex Marriage Rulings Affect Immigration to the United States, New York & New Jersey Immigration Lawyer Blog, July 23, 2015
EB-5 Investor Visa Program Scrutinized by Financial and National Security Regulators, New York & New Jersey Immigration Lawyer Blog, September 5, 2013
Photo credit: By A. Coeffler [Public domain], via Wikimedia Commons.