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Green and Spiegel - An Immigration Law Firm
  • 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.

     
  • Department of State Implements ‘Extreme Vetting’ Social Media Questions on Form DS-160 and Form DS-260

    by Esther Dressler | Jun 04, 2019

    On Friday, May 31, 2019, the Department of State (“DOS”) updated the online immigrant and nonimmigrant visa applications, Form DS-260 and Form DS-160, to include a question inquiring about the history of an applicant’s social media use. The new question requires applicants to fully disclose all the social media accounts they have used within the last five years by providing all their usernames and handles, but not passwords.

    Applicants may select the social media platforms from a dropdown list, -- which includes popular platforms based in the United States, and other countries –such as Facebook, LinkedIn, Instagram, Twitter, YouTube, Tumblr, Reddit, and more.The new question affects over 15 million immigrant and nonimmigrant applicants. Those who are excluded from answering this question includes most diplomatic and official visa applicants.

    This change was proposed in response to the Presidential Memorandum issued on  March 6, 2017, calling for the Secretary of State, Secretary of Homeland Security and Attorney General to implement protocols and procedures to enhance the screening and vetting of applications for visas and all other immigration benefits to increase the safety and security of the American people. As previously discussed, The DOS published a 60-day notice in the Federal Register on March 30, 2018 (83 FR 13807), and a 30-day notice in the Federal Register on August 28, 2018 (83 FR 43951), soliciting public comment on this proposed collection of social media information. The Office of Management and Budget (OMB) subsequently approved the Department of States’ proposal to expand the collection of social media identifiers on April 11, 2019, despite several public comments, expressing privacy concerns and disapproval of this proposal. 

    The DOS claims the information gathered will be used to confirm an applicant’s identity and determine visa eligibility under applicable U.S. law, which has raised great apprehension as this information is susceptible to misinterpretation and could create risks to privacy and free speech. Per the Office of Management and Budget’s Notice of Action, the DOS will be looking at public-facing content only and will not be requesting passwords for social media accounts in order to focus on detecting terrorist sentiment and activity to prevent dangerous individuals from gaining immigration benefits. The Brennan Center for Justice at the NYU School of Law has published a research reportthat outlines several takeaways from similar pilot programs in which DHS agents misinterpreted social media posts and we unable to reliably match social media accounts, which ultimately resulted in incorrect visa denials.

    In The Department of State’s Final Supporting Statement for Paperwork Reduction Act Submission the DOS states, “[w]ithin consular and fraud prevention sections of the Department’s overseas posts, public-facing social media information may be reviewed to assess potential visa fraud that would lead to a conclusion that the applicant is not eligible for a visa. For example, information on social media pages or posts may be used to validate legitimate relationships or employment required for visa eligibility, to identify indicia of fraud, or to identify misrepresentations that disguise potential threats.” This statement goes beyond the claim that social media information will be used to detect terrorist sentiment and activity for the safety and security of the American people. Overall, the social media information gathered will be used to deny visas based on specific statutory visa ineligibilities and not on the basis of race, religion, ethnicity, national origin, political views, gender, or sexual orientation.

    It should be noted that visa applicants who credibly represent that they have not used social media will not be adversely affected by not providing a social media handle. However, those applicants who purposely do not disclose their social media history may be considered to willfully misrepresent a material fact, potentially resulting in a lifetime ban from entry. Therefore, we do advise disclosing all social media accounts, even if they were deleted, if they were active within the last five years as traces of these deleted accounts may still be found.

    Additional questions that were proposed by the DOS, but have not yet been added to the online immigrant and nonimmigrant visa applications include the following:

    1. An optional question that asks applicants if they wish to provide any other social media identifiers for platforms they have used within the last five years to create or share content not listed in the initial social media question;
    2. A mandatory question asking whether an applicant has ever been removed or deported from any country;
    3. A mandatory question inquiring about whether an applicant’s family member has engaged in terrorist activity, including providing financial assistance or other support to terrorists or terrorist organizations, in the last five years;
    4. A mandatory question asking the applicant for any other telephone numbers used during the last five years besides their primary and secondary numbers; and
    5. A mandatory question asking whether the applicant has used any other email addresses for personal purposes during the last five years.

    Green and Spiegel will be closely monitoring any further updates to these online applications, as well as any further limitations or changes the Trump Administration is making to US Immigration.  If you have any questions regarding if and how USCIS’ announcement affects your pending nonimmigrant or immigrant visa application, please do not hesitate to contact our office.

  • Reintroduced Bill to Extend E-3 Visa Access to Irish Citizens

    by Esther Dressler | May 30, 2019

    A bill with the potential to grant thousands of visas to Irish workers each year has been reintroduced in the House of Representatives. House Democrat Richard Neal brought the bill, H.R. 2418, back in early May in the wake of renewed efforts to win congressional support for the measure. 

    Currently, Australia is the only country with access to the 10,500 E-3 visa slots each year. The legislation originally creating the E-3 visa program was signed into law by President George W. Bush on May 11, 2005. E-3 visas are similar in many ways to the H-1B visa, although the E-3 track does not allow dual intent. No petition to USCIS is required. Spouses of E-3 visa holders are able to work in the United States without restrictions, and the E-3 visa is renewable indefinitely, albeit in two-year increments.

    Since being signed into law, Australia has yet to use all of the available 10,500 slots: roughly half of the visas go unused annually. Beginning in late 2018, Ireland has strongly campaigned for access to this particular visa class, namely the roughly 5,000 visas that go unused each year.

    In November of last year, the House of Representatives voted in favor of an E-3 visa deal for Ireland. The bill was unable to garner the unanimous support needed in the U.S. Senate, however, when a hold was placed on the legislation by a handful of Senators, Arkansas Senator Tom Cotton among them.

    Recent diplomatic efforts surrounding this measure have ramped up significantly in recent months. Nancy Pelosi, Speaker of the House of Representatives, pledged to continue to work toward implementing the proposed legislature after she led a delegation of U.S lawmakers on a visit to Ireland. In March, Irish Taoiseach Leo Varadkar met with President Donald Trump and congressional leaders during his visit to Washington D.C. to discuss Irish E-3 visa access.

    The Irish Government has formulated a reciprocal arrangement which would ease restrictions on U.S. citizens who hope to work or retire in Ireland.

    In order to qualify for E-3 visas, applicants must be employed in a specialty occupation, have a legitimate offer of employment in the United States, and possess the requisite academic or other qualifying credentials.

    Our firm will continue to monitor the ongoing efforts to grant Ireland access to the E-3 visa scheme. Should you have any questions regarding E-3 or H-1B visas, or other employment-based nonimmigrant visa options, please do not hesitate to contact us.

  • Matthew Galati Elected Vice Chair for the AILA Philadelphia Chapter; Renamed to National EB-5 Committee

    by Esther Dressler | May 28, 2019

    GandS US Twitter AILA Vice Chair 

    Green and Spiegel Senior Associate Matthew Galati was not only re-selected for the ​national American Immigration Lawyers Association (“AILA”) Immigrant Investor (EB-5) Committee, but also tapped to hold the position of Vice Chair of the AILA Philadelphia Chapter for 2019-20.

    On May 23, 2019, during the organization’s annual elections, Matthew was elected Vice Chair by the membership, ending a year-long term as Treasurer. Matthew ended 2018-19 as being among the youngest lawyers nationally to hold a Chapter executive committee position; progressing through the ranks of chapter leadership since 2016. Similarly, AILA’s National leadership has re-selected Matthew to its Investor (EB-5) Committee for the 2019-20 term, kicking off at the organization’s June Annual Conference in Orlando. Matthew is only one of 10 members selected to this committee and its youngest.

    Speaking on behalf of the cross-border firm, Green and Spiegel Managing Partner Stephen Green said “Our firm has always been a leader in investment immigration in Canada, but we hadn’t focused much on the U.S. side until Matt joined the firm in 2016. It’s simply amazing how much he’s accomplished in less than three years. We’ve been able to now distinguish ourselves from our competition as the go-to firm for high net worth individuals on both sides of the border.”

    As described on its website, AILA is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members. The organization consists of more than 15,000 lawyers nationally and over 400 throughout its Philadelphia Chapter.

    Matthew T. Galati is an attorney at Green and Spiegel, one of North America's oldest immigration law firms offering comprehensive immigration solutions in the U.S. and Canada. Galati currently serves as a Senior Associate and EB-5 Section Head, dedicated to representing individuals and companies seeking use of foreign investment in the immigration context. Under Matthew's leadership, the firm's EB-5 volume expanded over 20-fold and is now regarded as an elite firm in this industry. Throughout his career, he has filed hundreds of EB-5 petitions and has experienced almost every aspect of immigration law. Galati is nationally recognized thought leader in the EB-5 Immigrant Investor Program, as he frequently speaks at reputable EB-5 conferences around the world.

  • Congress Blasts Trump’s Immigration Overhaul as Comprehensive Reform Remains Unlikely

    by Esther Dressler | May 23, 2019

    On Thursday, May 16, 2019, President Trump unveiled his administration’s proposal for a new employment-heavy immigration system that focuses on reworking border security and the current legal Immigration system. Though the proposed changes do not limit the number of green cards allocated each year, roughly 1.1 million per year, they do prioritize high-skilled workers over family relationships. Trump’s plan was championed by advisor / son-in-law Jared Kushner, who reportedly had been working on the plan for months.

    Before we get into the plan details itself, we want to make it abundantly clear to our readers that this is largely an academic exercise – there is unlikely to be a vote on legislation embodying Trump’s plan, much less passage through a divided Congress. Indeed, somewhat ironically, Trump’s plan has garnered bipartisan rebuke. House Speaker Nancy Pelosi offer a “dead-on-arrival plan that is not a remotely serious proposal.” Republicans speaking anonymously to the Washington Post likewise blasted the plan, pointing out that it lacked important details and cannot pass without addressing solutions for DREAMers.

    Trump’s plan would scrap the current FB- and EB- categories, upending expectations for families who have waited years (or even decades) for residency.  Under this new system, the preference categories would be replaced with a new visa dubbed the “Build America” visa, which will have no per country limits. The “Build America” visa (a so-called) merit-based legal immigration system would create a two-step process to obtain a Green Card that begins with 1) a civics test and background check; and then 2) evaluates each applicant on a point system that takes into consideration the applicant’s age, ability to speak English, job offers received, work experience and educational background. This new system will ultimately favor young applicants likely to build long-term ties and contribute to America’s society over their lifetimes. Scrapping guaranteed categories for family members, the newly proposed system would seek to prioritize spouses and children of U.S. citizens and immediate family members of U.S. Citizens and permanent residents, but it will eliminate those applicants currently waiting for years to immigrate as they would have to reapply under a new point-based system. This would affect the roughly 4 million applicants under backlogs reported back in November 1, 2018, resulting in unnecessary collateral damage as the current U.S. immigration system already prioritizes immediate family members of U.S. citizens and permanent residents.

    Currently, about 67 percent of all green cards issued to date fell into one of the family-sponsored categories, while 13 percent of green cards issued were awarded to refugees and asylum seekers. The new system aims to issue about 57 percent of green cards to applicants with high professional skills and education as the current system issues about 12 percent of all green cards to these immigrants.

    The administration may claim to have modeled the proposal on Canada’s point-based Express Entry system, although it is incredibly important to note that our northern neighbors have family-reunification streams separate and apart from Express Entry.

    Furthermore, the proposed immigration plan seeks to fund full border security through border crossing fees and revenues generated at ports of entry, which will be placed in a trust fund to ensure quick access to funding for physical barrier construction and enforcement of visa overstays. 

    Trump’s plan also proposes changes to the process in seeking asylum, including blocking Central Americans from applying for asylum at the border and instead requiring them to apply at processing centers in the Northern Triangle and in Mexico. President Trump claims the new system will prioritize “legitimate asylum-seekers” over “those lodging frivolous claims”, as if our current system does not already implement this goal.

    While we cannot state for certain that Trump’s legislative plan will fail in Congress, we are happy to prognosticate that its prospects look quite hopeless. Without the Administration embracing good faith compromise with the Democratic-controlled house (perhaps akin to the 2013 legislation which passed the Senate with 68 votes), comprehensive reform is highly unlikely.

    Contact us today with any questions you have regarding your immigration to the U.S.