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  • Department of State Gives EB-5 Backlog Projections and Anticipates Cutoff Dates

    Oct 31, 2018
    At the AILA / IIUSA joint conference on October 30, 2018, DHS’ Chief of the Visa Control and Reporting Division Charles Oppenheim gave his projections regarding wait times that families subject to the EB-5 visa backlog might face. His presentation provided the most up-to-date projections available based on current information. The numbers provide key insights for many, especially those weighing EB-5 who have teenage children that might “age out” due to long visa queues.
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  • Department of State Gives EB-5 Backlog Projections and Anticipates Cutoff Dates

    by Esther Dressler | Oct 31, 2018

    By: Matthew Galati

    At the AILA / IIUSA joint conference on October 30, 2018, DHS’ Chief of the Visa Control and Reporting Division Charles Oppenheim gave his projections regarding wait times that families subject to the EB-5 visa backlog might face. His presentation provided the most up-to-date projections available based on current information. The numbers provide key insights for many, especially those weighing EB-5 who have teenage children that might “age out” due to long visa queues.

    By way of background, about 10,000 EB-5 visas are made available to investors and their dependents each year. Because more than 10,000 are requested annually, the Immigration and Nationality Act caps the amount available to a given country’s natives at 7.1%. For example, a Canadian citizen born in Beijing is currently subject to the EB-5 backlog, while a Canadian citizen born in Montreal is not.

    Oppenheim’s methodology required calculating the approximate number of individuals chargeable to the most active EB-5 countries with pending Forms I-526 and adding that number to the approximate number of individuals waiting for a Green Card after approval (e.g. processing through the National Visa Center). By dividing by the country-specific annual quota, this enables one to make the most informed (yet imperfect) projection as to anticipated wait times.

    Furthermore, for any “extra visas” where the addition of all countries not subject to the 7.1% limit together is less than 10,000, those accordingly are to be applied by priority date. Given China’s historical dominance of the program and its unique position among backlogged countries, those visas will be allocated to Mainland-born investors for the foreseeable future.

    The results were as follows:

    Country

    Stated Approximate Wait Time (in years) to Receive a Green Card if Form I-526 Petition was Filed on October 30, 2018

    Mainland China (excluding Hong Kong and Macau)

    14

    Vietnam

    7.2

    India

    5.7

    South Korea

    2.2

    Taiwan

    1.7

    Brazil

    1.5

    Rest of world

    Expected to be “Current” for Foreseeable future

     

    It is critically important to note that these projections were provided with the following disclaimer:

    These estimates cannot encompass all variables, such as dissipation from petition revocations, deaths, age outs, withdrawals, etc.; or increases from family “acquired” before visa issuance, possible legislation or other governmental action that might impact the amount of numbers available for use each year.

    Wait time estimate is the number of years between the time an I-526 petition is filed [as of Oct. 30, 2018] and the time when an EB-5 visa is likely to be available based on current number use patterns, including the processing time of adjudicating an I-526 petition.

    These numbers might not surprise many industry professionals, who have witnessed surges in EB-5 filings from Vietnam and India in 2017-18. For the pessimist, there is a bit of a silver lining in the projections. Some countries listed that many feared would retrogress severely – e.g. S. Korea, Taiwan, and Brazil – will have wait times shorter than average USCIS Form I-526 processing times. In effect, if these numbers and processing times are to hold, there would be no noticeable retrogression because all cases approved and sent to the National Visa Center would have current priority dates.

    Mr. Oppenheim further provided projections for the remainder of the fiscal year:

    • An EB-5cutoff date for India is expected to be implemented no later than July 2019.
    • India’s EB-2/EB-3 backlog means that immigrants in those categories still face extremely long wait times. At present usage, it would take five years to move priority dates into 2011.
    • Vietnam is not anticipated to use its 700 visas before April 2019.
    • Vietnam’s Final Action Date will advance to May 1, 2016 in the December Visa Bulletin;
    • Mainland China’s Final Action Date will advance to August 22, 2014 in the December Visa Bulletin.

    The figures given were a snapshot as of October 30, 2018. By definition, they are already out-of-date, so consider these projections accordingly. None of the articles published on our Immigrant Investor Blog are intended to be legal advice. Beyond that general disclaimer, it is important to note that the above projections are simply that – projections. These are certainly not guarantees and demand for visas can shift in a short period of time. An individual’s immigration to the U.S. could be significantly slower or faster than anticipated. For example, Congress or the Executive Branch could change laws or policies or an important court case could turn the entire system on its head. Moreover, as many individuals often marry spouses born in low-demand countries (e.g. a Chinese investor marrying a native of Hong Kong), cross-chargeability would apply and obviate wait times for investors that would be subject otherwise.

    Nevertheless, these figures are vitally important for those interested in EB-5 immigration, specifically those families weighing whether or not their children will “age-out” or be protected under the Child Status Protection Act. We thank Mr. Oppenheim for his transparency in this regard.

    Contact us today to discuss whether EB-5 immigration is right for you and your family.

  • Might This Be ‘Last Call’ for $500,000 EB-5?

    by Niki Edwards | Oct 28, 2018

    Real talk: let me start this blog by admitting, “Yeah, I know you’ve heard this before.”

    The EB-5 industry has been saying it for years. It usually goes something like “Congress is going to pass game-changing legislation when the program needs to be reauthorized in a few months, so you need to invest now.” Or "New regulations are coming imminently that will change everything we take for granted." Some people have given even you concrete timeframes for this. Yet so far we – as an industry -- been ‘wrong.’ The law today is not materially different from ​what it was in the early 1990s. But that could be changing very soon.

    We’ve been highlighting potential changes on our Immigrant Investor Blog since its inception. I’m not going to apologize for putting the information out there so that my prospective / current clients can weigh the risks of a changing marketplace and make an informed decision. Yet as I reflect on the past few years, I do so with a keen awareness that some of my clients who panicked to file their cases before the “September 30, 2015 Deadline,” or face a feared imminent steep increase in minimum investment amounts, are now are filing their I-829s. As a lawyer, I have to be conservative to protect my clients’ interest. I have the benefit of 20/20 hindsight even though I (and practically all my contemporaries) could be credibly accused of being somewhat myopic over the past three and a half years.

    So I get why some prospective investors take so-considered EB-5 “deadlines” with a grain of salt, especially as Congress faces gridlock and dysfunction perhaps not seen since the antebellum era. But one thing we do know for sure: DHS can change significant parts of the EB-5 program independently of political pressures that otherwise halt legislative progress.

    Comprehensive change is virtually certain to happen, eventually. It’s late October 2018, and perhaps things are different now. In January 2017, we covered DHS’ EB-5 regulatory overhaul, proposed in the final days of the Obama Administration. Last week, DHS updated its regulatory agenda for this “RIN1615-AC07 EB-5 Immigrant Investor Program Modernization,” as being ready for a final rule in November.  We’ve covered similar developments previously, specifically that the agency had done so with a February 2018 and a later August 2018 publication date. Both were missed. But this one – estimating a final action just a month from now – feels different. USCIS has had 18 months to consider its proposed regulation. Now might be the time where the rubber meets the road.

    What does this mean? Obviously we don’t know whether DHS will meet its forecast. I’m not fully convinced its most senior officials know that for certain either.

    But what can we credibly predict?

    With a reasonable degree of certainty, we know that USCIS is going to raise the minimum investment amount. We’re long overdue as the industry is operating operating under the same basic conditions as we were in 1991, yet inflation has weakened the dollar considerably over 27 years. We’ve taken issue with their justifications for so sharply raising the minimum investment amounts as being factually inaccurate. Perhaps the agency will listen to us and the raised minimums will be lower than anticipated. Or maybe not. Again, we don’t know the specifics and I’m not convinced that anyone in the private sector does.

    Further, we are quite confident that USCIS will change both the qualifying criteria and the methodology as to whether a specific location qualifies as a TEA, meaning that the vast majority of projects currently on the market would require the higher minimum investment amounts. Currently, TEA designation is left largely to the states. We’ve expressed our concerns that federalizing this function will mire the process in needless bureaucracy. But it seems reasonable to assume that the days of  assuming that one “can probably get that address designated as a TEA” are numbered and the federal government will take a much more active role. The era of obtaining TEA designations in wealthy downtown neighborhoods is probably coming to a close. Further, there are more overhauls to the program proposed by DHS, and we’ve suggested that some of these be made broader. Perhaps DHS will heed our advice. Perhaps not.

    Lastly, we don’t know when the regulations, once published, will go into effect. Some have said 30-60 days. The last major EB- regulatory overhaul took approximately six months to go into effect. At best, timeframes are unclear at this point.

    The only thing we know for certain is that our team will be here for you before the regulation is published, when it goes into effect, and afterwards. We will work tirelessly to help you obtain your U.S. immigration goals whether it’s EB-5 or otherwise.

    Contact us today to discuss your immigration plans.

     

     

  • EB-5 Regional Center Program Extended Through December 7, 2018

    by Matt Galati | Oct 01, 2018

    If you or your family were interested in filing an EB-5 petition and feared Congressional changes to the program, rest assured that the opportunity to continue with a $500,000 minimum investment and unchanged other material elements of the program has been extended.

    With President Trump signing a short-term “minibus” bill on Friday, appropriations were made for departments of Defense, Education, Health and Human Services, and Labor, as well as a short-term Continuing Resolution (CR) to temporarily fund remaining government programs until December 7, 2018. The legislation is now enacted into law.

    The specific language extending the Program through December 7, without any changes, can be found on page 143 of H.R. 6157, where Congress incorporated an extension of “title II of division M of Public Law 115-141”, the previous legislative vehicle which enacted the program through September 30.

    The spectre of changes to the program, including through new regulations, does however remain. Investors seeking EB-5 immigration should strongly consider filing sooner, rather than later.  We will keep our readers updated with further developments.

    Contact us today to discuss immigration through investment options in the U.S., Canada, and beyond.

  • PEI Government Eliminating Entrepreneur Provincial Nominee Program

    by Mulaho Hassan | Sep 17, 2018

    The Prince Edward Island (“PEI”) provincial government will no longer accept applications from immigrants looking to set up a business in the province in exchange for immediate permanent residency. This move eliminates the entrepreneur stream of the Provincial Nominee Program (PNP) and moves Prince Edward Island in line with most jurisdictions across Canada. However, the province will accept applications from individuals to come and open a business if they meet a series of controls proving the business is successful and continuously operational for at least a year. As is done in other jurisdictions across the country, only then would they be considered for permanent residency.

    Prince Edward Island will continue to accept applications for workers coming to the province to fill jobs that employers have not been able to fill locally.

    “Since forming government in 2015 we committed to do business differently, and we delivered on that commitment. We recognized the need for greater scrutiny of our immigration programs, we set up tighter oversight over the agents who act on behalf of newcomers, we launched initiatives to help rural communities attract newcomers, and we increased overall accountability,” Economic Development and Tourism Minister Chris Palmer said in a statement.

    “Even as these changes are providing better results, it is clear that concerns remain – specifically around the entrepreneur program. We understand these concerns and believe it is in the best interest of our province to eliminate the entrepreneur escrow program entirely.”

    Overall, the province found that much of the capital provided by applicants to the program was simply “walked away from”, as investors left the funds dormant and moved to a different province, armed with nearly-immediately acquired permanent residence status. As constructed, there was little incentive for immigrant investors to actively manage and use those funds in the province. This defeated the core purpose of the program, and as a result action was taken.

    To provide adequate notice to applicants and immigration agents, government will undertake one more draw to select applicants on September 20. No more than 10 applicants will be selected, and no more applications will be accepted moving forward under the previous model.

    “As a government we must ensure that our programs are working to benefit our province,” said Minister Palmer. “It is clear that previous successive governments were unable to alleviate concerns about the entrepreneur stream. This decision will ensure that our programs are working in the best interests of Islanders.”

    We at Green and Spiegel have deep experience in assisting clients with acquiring permanent residence in Canada via Immigrant Investor Programs. The Firm’s attorneys also have considerable experience in obtaining the prerequisite work permits for investors as now required by the PEI program. If you would like more information about relocating you or your family to Canada, we would be more than happy to assist. Please contact us directly

  • Matthew Galati Presents at EB-5 Investors Magazine’s Fall Ho Chi Minh City Conference

    by Niki Edwards | Sep 13, 2018

    On September 8, Green and Spiegel’s EB-5 Section Head Matthew Galati presented at EB-5 Investors Magazine’s Fall 2018 Ho Chi Minh City Conference. Galati served as the chair/moderator of a panel entitled “Hot EB-5 Issues for Vietnamese Investors,” which discussed a wide variety of current events and trends in the program.

    The Panel, consisting of four immigration attorneys and Vietnamese EB-5 consulting firm IMMICA, covered Vietnam-centric issues including visa retrogression, currency swaps, capital redeployment, and other hot topics. Green and Spiegel also sponsored a panel entitled “EB-5 Project Due Diligence: Project evaluation criteria considering the current state of EB-5 program and Vietnam Market,” featuring four regional center representatives and Vietnamese EB-5 consulting firm IBID.

    Green and Spiegel is one of North America’s oldest immigration law practices with over 50 years of experience assisting a diverse global clientele and a role as thought leaders on both sides of the U.S.-Canadian border. The Firm is headquartered in Toronto, Canada with U.S. offices in Philadelphia, PA, Providence, RI, and Vail, CO.

    With a U.S. practice founded in the early 1990s, Green and Spiegel offers a full range of inbound immigration services for employers, temporary workers, individuals and their families. Expanding upon the Firm’s Canadian roots, the U.S. practice represents clients operating in the healthcare, insurance, professional sports, information technology, and many other industries. As a dedicated immigration-only law firm, Green and Spiegel also caters to entrepreneurs, investors, and start-ups seeking immigration benefits. The Firm includes five partners and approximately 130 employees offering services in over 30 different languages.

    Matt in Vietnam

    Matt in Vietnam

  • Grenada CBI Committee Names New Program Enhancements, Unit CEO

    by Niki Edwards | Sep 12, 2018

    The Grenadian CBI program is poised for massive improvements in the very near future. In a circular dated September 10 (attached to this post below), Grenada’s Citizenship by Investment Committee Chairperson Kaisha Ince announced significant reforms that will liberalize the CBI program, while committing to bring down already relatively quick processing times.

    Most significantly for prospective investors, the CBI Committee will broaden the scope of an investor’s dependents also eligible for citizenship. New dependents include:

    • Unmarried brothers and sisters / brothers- and sisters-in law of the investor who do not have children;
    • Parents who are not financially dependent on the main applicant (as had been required previously); and
    • Children over the age of 18 who are not enrolled in a college or university. Dependent children may accordingly acquire citizenship up to the age of 30.

    Another game-chang​er is the new ability to acquire citizenship through the secondary purchase of real estate units in CBI-approved projects. Accordingly, provided all other requirements are met, an applicant might be able to acquire citizenship through the purchase real estate from a previous CBI applicant, providing an opportunity for much greater flexibility in entering and exiting approved real estate projects.

    While not effective immediately, the circular notes that these new legislative provisions are anticipated to go into effect later this month.   Beyond these changes, the program has also named Mr. Thomas Anthony to the position of Chief Executive Officer, effective immediately.

    Green and Spiegel has demonstrated experience in Grenadian CBI, including multiple marketing subagent licensures. For more information regarding acquiring a Grenadian passport or an E-2 nonimmigrant investor visa thereafter, please contact us today.

  • PREMIUM PROCESSING FEE INCREASES BY ALMOST 15%

    by Mulaho Hassan | Sep 05, 2018

    On August 31, 2018, U.S. Citizenship and Immigration Services (USCIS) announced that it would be increasing the premium processing filing fee from $1,225 to $1,410, effective October 1, 2018. The Premium processing fee is an optional service available for certain petitioners filing Forms I-129 or I-140. This service enables petitioners a truncated processing time of 15 days. The premium processing fee is paid in addition to the base filing fee (along with any other fees).

    USCIS stated that the increase is in line with the Immigration and Nationality Act, and “represents the percentage change in inflation since the fee was last increased in 2010 based on the Consumer Price Index for all Urban Consumers.” After rounding, the fee is increasing by 14.92 percent.

     As the updated fee goes into effect October 1, 2018, all applications postmarked on or after that date must include the new fee. If you are interested in utilizing this service, contact us today to talk about your options.

  • Quebec Immigrant Investor Program Will Re-Open September 10th, 2018

    by Mulaho Hassan | Aug 21, 2018

    Quebec's Minister of Immigration, Diversity and Inclusion announced that the Quebec Immigrant Investor Program (QIIP) will be re-open from September 10th, 2018 until March 15th, 201​9.  The maximum number of applications that will be accepted during this period is 1,900. 

    In order to qualify for the program, the applicant must have: 

    • At least two years of management experience during the five years preceding the application;
    • A legally-accumulated net worth in excess of CAD $2,000,000; and
    • The intention to reside in the Province of Quebec and commit to investing CAD$1,200,000. 

    Financing is available and, at current rates, the cost to the client will be CAD$350,000. Any applicant who demonstrates an intermediate ability in French, ​may submit their application at any time until March 31, 2019 and will receive priority processing.  

    For more information regarding the Quebec Immigrant Investor Program, please contact our offices directly.
  • USCIS Changes Form I-829 Receipt Location

    by Matt Galati | Aug 13, 2018

    On August 13, USCIS announced that Form I-829 must now be filed at the Texas Lockbox (where Form I-526 is filed) as opposed to its historical destination at the California Service Center:

    On Aug. 13, USCIS changed the filing location for Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status. This form was previously filed at the California Service Center. Now, petitioners must send Form I-829 to a USCIS Lockbox facility. However, the Immigrant Investor Program Office continues to be the adjudicating office. When filing at a Lockbox facility, petitioners have the option to pay the fee with a money order, personal check, cashier’s check, or credit card. Please follow the Where to File and Filing Fee directions on the I-829 page. 

    Investors must ensure that their Form I-829 is appropriately filed within 90 days of the expiry of Conditional Permanent Residency, lest they face grave consequences including becoming subject to deportation.  The lawyers at Green and Spiegel have considerable I-829 experience, including the drafting of Condition Removal Templates, investor representation in problematic cases, and even representation in removal proceedings. 

    Contact us today for more information regarding Form I-829 adjudications and processes. 

  • Lawsuit Filed to Relieve EB-5 Quota of Derivatives

    by Niki Edwards | Aug 13, 2018

    On July 25, 2018, a lawsuit was filed in the U.S. District Court for the District of Columbia (Feng Wang, et al. v Michael R. Pompeo) that fundamentally challenges the way that the federal government counts spouses and children when determining the annual limits for the EB-5 immigrant visa category. Under present law, EB-5 admissions are limited to approximately 10,000 per year, including not only investors but also their spouses and minor children. While relegated to the context of the EB-5, the lawsuit has the potential to significantly reshape legal immigration across a wide range of categories.

    The suit directly challenges the Department of State’s interpretation of EB-5 visa allocation, which effectively reduces the number that can be issued to investors each year. Specifically, it alleges that the Immigration and Naturalization Act’s plain language requires that approximately 10,000 visas be made to investors each year, the Department wrongfully counts the spouses and children of investors against the annual visa allotment set. The complaint cites Congressional proceedings supporting legislative intent that these family members should not be counted against the visa limit.

    Under present interpretation, substantially more than half of the annual allotment of EB-5 visa numbers are exhausted on the spouses and children of investors, rather than investors themselves. Per the Cato Institute), in Fiscal Year 2017 by counting spouses and children against the EB-5 limit of about 10,000 green cards, the State Department has effectively reduced the quota for investors by almost two thirds. Rather than the full 10,000 going to investors, the government provided green cards to only about 3,500 investors. This issue is especially acute with Vietnamese families (the second-largest source of EB-5 petitions in the world) where family sizes tend to be relatively large.

    The Plaintiffs allege that the Department of State’s “Counting Policy” unlawfully erodes the number of visas available for actual investors, prolongs waits, separates immigrant families, and undermines investments into the U.S. economy and workforce.

    Indeed, given the massive gap between those whose EB-5 petitions have been approve and those whose Immigrant Visas have actually been processed, significant backlogs have been created. Of particular concern in the suit is the effect that these backlogs that have for the separation of families in the form of children of investors having face the harsh reality that they risk becoming ineligible when they reach 21 and “age-out” of the process.

    Certain countries feel the pain of these backlogs more than others. Take for example, the waiting time for someone born in Mainland China. As a result of the policy, otherwise-qualifying Chinese immigrant investors in 2018 have to wait an estimated 15 years to receive their permanent residence. Many EB-5 applicants have already had their children age out, and this number stands to increase in the years to come. The lawsuit seeks to protect the remaining children from losing their opportunity to immigrate with their parents.

    Notably, the Court’s decision could apply with equal force to other preference categories—in both the family and employment-context—with a potential outcome that could solve the problem of unworkable waiting times for Green Cards. However, the immigration community will have to wait and see with bated breath as to what the D.C. District Court determines, as well as any further decisions upon appeal.

    Contact us today for more information relating to your family’s immigration through investment in the U.S., Canada, and beyond.