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Green and Spiegel - An Immigration Law Firm
  • Senator Rand Paul Seeks Congressional Action to Halt EB-5 Program Changes

    Sep 05, 2019
    As we previously discussed, United States Citizenship and Immigration Services (USCIS) proposed substantial changes to the EB-5 regulations on July 24, 2019. The “EB-5 Immigrant Investor Program Modernization Rule” is scheduled for implementation on November 21, 2019. It appears that the Administration will apply the rule, as written, unless Congress acts to stop it. Learn more.
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  • Senator Rand Paul Seeks Congressional Action to Halt EB-5 Program Changes

    by Esther Dressler | Sep 05, 2019

    As we previously discussed, United States Citizenship and Immigration Services (USCIS) proposed substantial changes to the EB-5 regulations on July 24, 2019.   The “EB-5 Immigrant Investor Program Modernization Rule” is scheduled for implementation on November 21, 2019.  It appears that the Administration will apply the rule, as written, unless Congress acts to stop it.

    On August 20, 2019, U.S. Senator Rand Paul, a long-time supporter of the EB-5 program, sought to block implementation of the changes through a Congressional Review Act resolution.  In a Letter to Colleagues, he wrote:

    “By significantly raising the minimum investment levels required for foreign investors to become eligible petitioners under the EB-5 program, this rule may undermine the very purpose of the program, which is to create jobs and grow the economy.  Moreover, the rule would severely restrict the role of the states in determining targeted employment areas… Taken together, these regulatory changes will disrupt regional center operations and are likely to reduce the level of foreign direct investment in the U.S. economy.”

    As written, the new rules – specifically those nearly doubling minimum investment amounts – will likely reduce the number of EB-5 filings and adversely impact the overall effectiveness of a program that has successfully channeled foreign investment into the US economy.  Senator Paul’s efforts to delay implementation may open a window for a broader legislative effort to address EB-5 program challenges like the country cap and adjudication delays. We have previously detailed our opposition to the EB-5 Modernization Rule, although our concerns were largely ignored. We accordingly advise clients to interested in EB-5 to move forward as quickly as possible given significantly worse terms starting November 21.

    We will continue to monitor this issue closely.  Contact us today to discuss EB-5 investor questions.

  • Update: French E Visa Validity Policy Will Take Effect September 26, 2019

    by Esther Dressler | Aug 29, 2019

    On August 21, our firm wrote about the revised reciprocity schedule for E visa classifications for France. More specifically, it was announced that the validity period of E-1 and E-2 visas issued to French foreign nationals would be reduced to 15 months, down significantly from a maximum validity period of five years (or 60 months).

    When the policy was first shared with the public, the change was slated to take effect on August 29, 2019. However, the roll-out date has since been pushed back. The change in the reciprocity schedule will instead be implemented on September 26, 2019. 

    U.S. Practice Director, Jonathan Grode, will be in Paris at the end of September and will endeavor to meet with the Visa Chief and E-2 officer as he has done in the past. Additionally, in his role as President of the of the French-American Chamber of Commerce Philadelphia Chapter, Jonathan has been in touch with the French consular corps and hopes to gain further insight.

    It is our sincere hope that this change will only last for a short period of time – adjustments to the visa reciprocity table are not uncommon, and we remain optimistic that this is a temporary rather than permanent adjustment. Importantly, adjudicative standards have not changed. While the shorter validity period is problematic and unfortunate, the level of scrutiny and the requirements for E-1 and E-2 visas has not changed. This means that new registrations and renewals should be adjudicated under existing standards.

    The firm is offering free planning sessions with all current French clients in light of this change. We will continue to monitor this situation as it unfolds. If you have questions regarding the E visa classification or the impact of this policy, please contact us.

  • Final Action Dates Leap Forward on the Latest Visa Bulletin and Indian EB-5 Applicants are the Big Winners

    by Esther Dressler | Aug 23, 2019

    The September 2019 Visa Bulletin was recently published and it contains significant changes for some visa applicants. While some EB-5 visa applicants saw moderate improvement in available visas from the August 2019 Visa Bulletin, Indian investor applicants will notice that Indian Final Action Dates have moved considerably forward based on, in our opinion, slower than anticipated I-526 adjudications.

    The July Visa Bulletin established Current dates for all countries except China, Vietnam, and, for the first time, India. Indian natives with Final Action Dates earlier than May 1, 2017 could file for a visa but Vietnamese nationals were assigned a Final Action Date of October 1, 2016 and Chinese Nationals were assigned Final Action Dates of October 1, 2014. Then, in the August Visa Bulletin, the Final Action Dates for China, India and Vietnam were all set to October 15, 2014, ostensibly as the Department of State identified that India and Vietnam’s country caps were effectively used. With the September 2019 Visa Bulletin, we see India’s Final Action Date lurching forward again to September 1, 2017, while China and Vietnam share an October 22, 2014 Final Action Date.

    The Green and Spiegel immigrant investor team tracks the Visa Bulletins carefully and is in a good position to assist potential immigrants who are interested in US investment opportunities and the status that may go along with it. If you have an approved EB-5 or pending petition  and would like to discuss filing for status in the US,contact us today.

  • French E Visa Validity Period Reduced to Maximum of 15 Months (Down From 60 Months)

    by Esther Dressler | Aug 21, 2019

    On August 20, 2019, the U.S. Department of State announced a revised reciprocity schedule for France for the E visa classification. Specifically, the validity period of E-1 and E-2 visas issued to French foreign nationals has been drastically reduced to a mere 15 months. In the past, French E visas were issued with validity periods of five years (or 60 months). This policy takes effect on August 29, 2019.

    Treaty Trader (E-1) and Treaty Investor (E-2) visas are for citizens of countries with which the United States maintains treaties of commerce and navigation. E-1 visas are for applicants wishing to come to the U.S. to “engage in substantial trade,” while E-2 visas are for applicants who seek to come to the U.S. to “develop and direct the operations of an enterprise in which you have invested a substantial amount of capital.”

    Per the statement posted on the DOS website, the reduction in E visa validity time from 60 months to 15 months has been instated as a response to “treatment afforded to U.S. citizens by the Government of France.”

    To date, there has been no recent change in the duration of visas granted to US citizens by France. The French “Passport Talent” scheme covers 10 immigration categories, a handful of which closely align with the E visa designation. The Passport Talent visa for entrepreneurs and investors is most often issued for a period of four-years. Thus, for now, it is unclear what exactly is meant by “treatment afforded to U.S. citizens,” as there is no direct or correlative change in the French reciprocity schedule.

    It is also worth noting that the exact E visa validity period varies widely from country to country based on the reciprocity schedule with that country. In Switzerland, for example, E visas are issued with a validity period of 2 years. For Egyptian or Bangladeshi foreign nationals, E-2 visas have a validity period of only 3 months. In the majority of countries with which the United States has a qualifying trade agreement, including most of our EU allies, E visas are issued in 5-year increments.

    Although 15 months is by no means the shortest period of validity currently associated with E visas (as noted above), the new policy marks a significant shift in the U.S. approach to French visa applicants, particularly in terms of fostering financial investment via French entrepreneurial endeavors in the U.S. Indeed, the overall goal and spirit of the E visa classification centers around fiscal growth, investment in the U.S. economy, and cross-cultural exchange.

    More specific information regarding E visa validity periods (by country) can be found in the Department of State’s reciprocity schedule, here. Please note that, as of the time of this blog post, the reciprocity tables for France have not yet been updated to reflect the new change.

    Our offices will be monitoring this new policy and its effects closely. We are hopeful that this change is temporary and that the French and US governments can once again align on investment and trade-based visas classifications. Jonathan Grode (U.S. Practice Director of Green and Spiegel), in his role as President of the French-American Chamber of Commerce will personally be attempting to garner more information regarding this change and future alterations to this important visa classification for French nationals doing business in the United States.  If you have questions regarding the E visa classification, or the potential impact of this policy, please do not hesitate to contact us.

  • What’s Going to Change With The New EB-5 Regulation, Effective on Nov. 21?

    by Esther Dressler | Jul 31, 2019

    We previously covered the publication of the EB-5 Modernization Rule when it was provided to the public on July 23. Now that everyone has had a chance to read and digest its 239-page discussion of comments and rationale, we are happy to present our readers with the following summary of the major changes to the EB-5 program. Note that these changes apply to Direct and Regional Center-based petitions alike.

    1. Minimum investment amounts will rise substantially. When the EB-5 Modernization Rule was proposed in January 2017, undoubtedly its most shocking provision was the proposed raising of minimum investment amounts from the current $500,000 (targeted employment area “TEA”) / $1m (default) amounts to $1.3m (TEA) / $1.8m (default). Commentators for the most part attacked this proposal, arguing that it was too much, too fast. In finalizing the rule, DHS was moved somewhat in this regard. Effective with cases filed on Nov. 21, 2019 or later, the minimum TEA-based investment will be $900,000. DHS did not budge, however, on the non-TEA amount which is now pegged at $1.8 million, as was proposed. Although proportionally the difference between the two is the same, this now creates a much more severe differential of $900,000 in minimum investments, based on geography.
    2. Minimum investment amounts will change in the future. The new regulation reflects the only instance of raising in the EB-5 investment amounts in the program’s 29-year history. While stakeholders may disagree whether this was overdue, future minimum investment amounts will be adjusted automatically every five years from the effective date based on the Consumer Price Index for All Urban Consumers, an economic indicator that tracks the prices domestic goods and services. Thus, if consumer prices rise in the future (e.g. through inflation), then EB-5 minimums will also rise. EB-5 stakeholders can accordingly anticipate higher minimums to be effectuated in November 2024, 2029, 2034, and so on.
    3. It’s going to be much more difficult to obtain a “high unemployment TEA” designation. Compared to other issues, EB-5 stakeholders were much less unified on the question of what locations should qualify as a high unemployment TEA, possessing at least 150% of the national unemployment rate. Presently, USCIS defers to state designations of TEA locations which, in effect, can be just about anywhere provided that the proper state official signs off on the designation. This practice has been derided by some as “gerrymandering.” Effective Nov. 21, the methodology for obtaining a high unemployment designation will be a single census tract in which the NCE is principally doing business, and “any or all census tracts directly adjacent to such census tract(s)” by utilizing a weighted average.Notably, the regulatory text of this rule is somewhat inconsistent with the rule summary which requires the use of “any and all adjacent tracts.” USCIS might accordingly need to issue guidance in this regard.
    4. USCIS has ended its deference to state TEA designations, greatly complicating this process. When we submitted our comment to the draft rule, we worried that federalizing the high unemployment TEA designation process would lead to increased processing times and uncertainty, similar to how processing times for prevailing wage determinations rose after USCIS federalized the labor market testing process in the mid-2000s. In the final rule, USCIS did not establish a separate TEA designation process or enable states the ability to utilize a TEA designation letter based on the new methodology. Instead, USCIS will itself at the time of adjudication make the determination of whether an NCE is in a TEA  based on the documentation submitted by investors. An assumption that a project will remain in a TEA year after year can no longer be guaranteed.
    5. There are some limited priority date retention provisions. Investors with approved I-526 petitions who have – because of processing times or quota backlogs – will be able to retain their priority dates if new I-526 filings are needed. Thus, in case of material change or a failed project, an investor need not go back to “end of the visa queue.” We advocated that the rule should be broader, protecting investors who may have had their petitions denied but were approvable when filed. Unfortunately, the agency will not go so far.
    6. The I-829 process for Derivatives is now clarified. DHS has now clarified that derivative spouses and children not included with a principal’s I-829 (either because the principal omitted the derivative or failed to file), derivatives may file their own separate petitions. One wonders the practical applicability of this clarification, however, as the derivatives may not have access to the documentation needed for I-829 approval.
    7. Project issuers will have the chance to modify their offering documents without worry of “material change.”The rule is effective 120 days from its publication, or Nov. 21, 2019. As part of the implementation language, project issuers are permitted to modify their documents to comply with the new rule (perhaps by changing the number of units in the offering raise) without worry that the changes are material. This accordingly will protect backlogged investors and those leveraging exemplar approvals that file in the brave new EB-5 world beginning in late November.

    In sum, we are of the opinion that the regulatory changes are for the most part detrimental to the interests of prospective investors, although we appreciate that USCIS gave stakeholders four months of lead time to brace for change and did not attempt to apply provisions retroactively. We accordingly believe that most individuals would be best served by filing their EB-5 petitions as soon as possible, and certainly no later than November 20, 2019.

    Contact us today if you are interested in filing an EB-5 petition prior to the effective date.

  • EB-5 Regulation To Be Published, Effective Nov. 21, 2019

    by Esther Dressler | Jul 23, 2019
    Tomorrow, the Department of Homeland Security (DHS) will publish the EB-5 Modernization Rule in the Federal Register. 
     
    The finalized regulation will raise minimum investment amounts to $900,000 (TEA) and $1.8 million (non-TEA). Furthermore, the TEA designation rules are significantly curtailed.
     
    We will update our readers once we have had opportunity to fully review the regulation. Contact us today if you are interested in filing an EB-5 petition prior to the effective date.
  • Josh Rolf Leads Investment Visa Discussion in Buenos Aires

    by Esther Dressler | Jul 16, 2019

    Joshua Rolf and Rodrigo Solá Torino 

    On July 12, 2019, Green and Spiegel Associate Joshua Rolf appeared at Marval, O’Farrell & Mairal in Buenos Aires, Argentina. Following-up on U.S. Practice Director Jonathan Grode’s appearance at the ABA’s Midyear Meeting in May, Josh returned to Buenos Aires to join Marval Partner Rodrigo Solá Torino in presenting strategies for expanding business operations in the United States through employee transfer and investment, and approaches to doing the same in Argentina. The talk also covered trends in both countries’ regimes that may affect future relations and business opportunities, including but not limited to recently proposed regulations that would alter the EB-5 Program and legislation that would eliminate per-country limits for employment-based green cards. 

    “Having previously lived in Buenos Aires, it was a true pleasure to be back in this wonderful city and to have presented alongside such a distinguished attorney as Rodrigo, and at an institution the likes of Marval,” said Josh, one of Green and Spiegel’s several Spanish-speaking attorneys who delivered the presentation and fielded questions in his best porteño accent. “It was also so interesting to speak with Rodrigo and his visa team over the course of my visit about the similarities and differences between our immigration systems. I hope that this was the first of many such encounters, and that we continue to build stronger relationships with our Argentine colleagues and their country’s enterprising business community.”

    If you like to learn more about the approaches discussed during this presentation, or any other immigration-related matters, please do not hesitate to reach out to our Firm.

  • Bipartisan House Overwhelmingly Passes Country Cap Removal Bill, Future Uncertain in Senate and White House

    by Esther Dressler | Jul 12, 2019

    This week in an extremely rare bipartisan action on immigration reform, the United States House of Representatives overwhelmingly passed H.R. 1044, the“Fairness for High-Skilled Immigrants Act of 2019.”

    As drafted, H.R. 1044 would remove country caps on all employment-based Green Card categories and raise country caps to 15% of worldwide levels on family-based categories. In an effort to allay some concerns of passing decades-long processing times to all prospective immigrants overnight, H.R. 1044 would also enact three years of transition rules -- specifically, visa set asides --  for next three fiscal years to individuals from countries other than the top two in the EB-2, EB-3, and EB-5 categories. Finally, H.R. 1044 provides a so-called “do no harm” provision that will prevent delays for beneficiaries with approved visa petitions as of the date of enactment.Those with pending petitions would not be protected.

    Currently, H.R. 1044 is virtually certain to not pass the Senate in its current form because that body is considering a similar companion bill, S. 386. The Senate version of the reform includes varying provisions including heightened scrutiny upon H-1B visas and no transition rules for the EB-5 category. If S.386 is passed the two bills would likely go to a conference committee to resolve technical differences.

    Proponents heralded H.R. 1044’s passage while critics argued that its effects were not fully considered by lawmakers. Because our firm represents some clients who would be aided by the Bill if enacted in its current form, and others who would be harmed, we do not take a public position of support or opposition.We also cannot opine, with any true degree of certainty, whether country cap removal legislation will ever be enacted into law.

    Our clients should remain cautious that this reform could significantly accelerate up or delay their immigration timelines. This legislation is especially beneficial for natives of India, who currently face extraordinarily long employer-sponsored Green Card backlogs. In the EB-5 context, the mainland China backlog would also greatly benefit. But because no visa numbers would be increasing – nor derivative counting removed – natives of the present “rest of the world” allocations in each category would be likely to have significantly longer wait times.

    That being said, notwithstanding the overwhelming bipartisan support for H.R. 1044’s provisions, there are currently many reasons for pessimism that S. 386 or similar legislation will pass the Senate or be signed into law by the Trump White House:

    • There are “holds” on S. 386. Senator Rand Paul (R-KY), among others, have stalled S. 386 from going to the Senate floor. With active opposition to the Senate Bill as drafted, it is presently not clear whether it will ever receive a vote.

       

    • It is not clear whether Senate leadership supports country cap removal.Senate Majority Leader Mitch McConnell (R-KY) has embraced the self-described role of being the “Grim Reaper” regarding legislation that passes the House, frustrating most attempts at immigration reform. Without McConnell’s personal support and desire to make S. 386 a priority, efforts towards a brining about a Senate vote could be in vain.

       

    • The Administration appears to oppose both bills. In an historically extraordinary move that has become more typical of the Trumpian era, the Department of Homeland Security has contacted Republican lawmakers in a semi-public manner and voiced their opposition to both Congressional bills. Congress’ passage of country cap removal could therefore trigger a rare veto by President Trump, even if endorsed by Republican lawmakers.

       

    • Conservative influencers oppose reform. These include right-leaning organizations seeking to curtail immigration and even Fox News personality Sean Hannity, who is known to closely advise the President on policy.

     

    We will continue to monitor this issue closely. Contact us today for more information relating to immigration reform and legislative developments.

  • OMB Finalizes EB-5 Modernization Regulation, Changes to Program Expected Imminently

    by Esther Dressler | Jun 30, 2019

    On June 27, 2019, the Office of Management and Budget announced that it has concluded its review of the EB-5 Immigrant Investor Program Modernization Rule.

     

    OIRA Conclusion of EO 12866 Regulatory Review 

    The Rule (as proposed), would significantly raise minimum investment amounts and change the definition of which geographical locations qualify for  “Targeted Employment Area” designations with lower investment thresholds, among other changes. Readers may be familiar with our 2017 coverage of the Rule when it was proposed, as well as our comment to the Proposed Rule which was mostly in opposition to its terms and process.

    We now expect the Rule to be published in the Federal Register imminently. However, at the time of this writing, the following key elements of the Final Rule are not clear:

    • Its final substantive terms. USCIS received hundreds of comments from industry stakeholders, most of which were in opposition to the terms of the Proposed Rule. USCIS may have taken these comments into consideration and adjusted the proposal accordingly.
    • When the Final Rule will be published. We expect it to be printed in the Federal Register at any moment.
    • When it will go into effect. According to the government, “When an agency publishes a final rule, generally the rule is effective no less than thirty days after the date of publication in the Federal Register.” Some immigration regulations overhauling visas, however, have taken significantly longer to go into effect.
    • What effect the Rule will have on the market. Many industry professionals assume there will be a lag time where USCIS will accept filings based on the current EB-5 rules prior to investment amount increases going into effect. This may accordingly cause a surge in demand as investors seek “grandfathering” under relatively better terms. We stand ready to help prospective investors considering EB-5 if this proves to be true.

    This finalization is a rapidly changing development and we will keep readers abreast of the Rule’s implementation. Contact us today with any questions regarding EB-5.

  • David Spaulding Joins Green and Spiegel as the Head of the Compliance and Regulatory Practice Section

    by Esther Dressler | Jun 17, 2019

    Green and Spiegel welcomes Former USCIS Fraud Detection and National Security Directorate Supervisor David Spaulding to its Philadelphia office, strengthening its Compliance and Regulatory Practice amidst a climate of heightened enforcement.

    Philadelphia, PA: On Monday, June 17, 2019, David Spaulding joined the North American immigration law firm Green and Spiegel in Philadelphia as the Head of the Firm’s Compliance and Regulatory Practice Section. Spaulding is poised to be a critical asset to the Firm, leading a team dedicated to Form I-9 and related employer compliance matters, navigating EB-5 Regional Center and H-1B site visits, and obtaining immigrant and nonimmigrant benefits for clients.

    Spaulding joins the firm immediately following his position as Investigation Group Supervisor for the Department of Homeland Security, a role he held for more than seven years. He also served as an Immigration Officer for Legacy INS and USCIS for 17 years prior to that time, where he decided cases filed by prospective immigrants and their attorneys.

    U.S. Practice Director and Managing Partner Jonathan A. Grode commented on the hire as continuing to fulfill growing demand largely unmet in the industry to date, given the Trump Administration’s increased focus on enforcement.

    “For years Green and Spiegel has helped employers of all sizes navigate the labyrinth that is federal worksite enforcement actions. With the current Administration’s enhanced effort in this regard, it became apparent that we needed to add an experienced compliance attorney to fulfill the demand and better serve our clients,” Grode explained.

    “To have David Spaulding join the Firm to help further develop and direct this practice area exceeded our expectations for the ideal hire that we had in mind. Understanding how or why the government takes certain actions is nearly impossible without having been part of that decision-making in the past. With decades of experience, I can think of no better attorney in the Philadelphia area – or, frankly, the nation – to take on these challenges,” Grode added.

    Indeed, Spaulding’s hire comes on the heels of Immigration and Customs Enforcement’s quadrupling of enforcement actions against employers in the past fiscal year, with the prospect of a more heavy-handed approach in 2019-20 as immigration-related issues dominate the national discussion.

    “Employers – whether they use foreign labor or not – need to be aware of the Administration’s Form I-9 compliance priorities. At this point it’s not an exaggeration to say that every business needs to be prepared for a visit from Homeland Security Investigations,” Spaulding explained. “Further, those that do leverage immigration benefits – whether it be H-1B temporary workers, aggregating EB-5 capital investment, or transferring employees from abroad – have an even greater chance of surprise visits.”

    “I am very excited to assist the clients of Green and Spiegel to develop robust compliance mechanisms, that reduce risk and improve profitability. Two decades of regulatory and enforcement experience has equipped me with a broad and deep understanding of the challenges business face in this complex and dynamic legal environment,” he added.

    Beyond his recent USCIS positions, Spaulding boasts a resume full of impressive government experience. A veteran, Spaulding served in the U.S. Navy as an enlisted sailor and subsequently a Stinger Missile Team Sergeant with the Pennsylvania National Guard. Spaulding has also served as a Special Prosecution Assistant in the Chester County Pennsylvania District Attorney’s Office, where he calls home with his wife and three children.

    Spaulding is also a graduate of La Salle University (B.A., magna cum laude) and of Temple University’s Beasley School of Law (J.D.).

    ABOUT: Green and Spiegel is one of the world’s oldest immigration law practices specializing in North American immigration law. From large corporate employee transfers to difficult family sponsorships and humanitarian applications for permanent residence, Green and Spiegel can help. With top legal minds in corporate employee transfers, removal/deportation, immigrant investment, family immigration, immigration compliance, and resolution of inadmissibility issues, the professionals at Green and Spiegel have been recognized as industry leaders.