Newsletter Client Report: Summer 2017
We hope and trust that you are having a good summer. It has been a bit rainy in south Florida this summer, but usually by the time you blink the wet weather has subsided. We can all take a page from our European clients who take vacation time seriously and never miss it!
Immigration in general:
Well, it has certainly been nonstop since the inauguration of President Trump in January. While he has espoused a strong economic agenda, it is clear that the ‘welcome mat’ has been pulled from under immigrants and non-immigrants alike, with more deportations, tough border controls, and more discussion of the famous Wall.
Readers should remain informed as to White House Executive Orders which may affect entry into the US. You should also know that the border between Canada and the US has, indeed, ‘thickened’ and that border controls are strictly interpreted. Use caution in ensuring that all documents are up to date and that there are no overstays. You may check CIS records on line at https://i94.cbp.dhs.gov/I94/. Print this out at least annually and keep a copy when crossing the border.
The H-1-B program is at risk, with the administration feeling that such foreign nationals who are of a superior training and/or education are taking jobs away from Americans. While this has been clearly rebuffed as an emotional excuse, it makes for good press and the visa is at risk. Last year four times the quota was applied for.
Employers of all kinds who hire foreign nationals can expect unscheduled CIS site visits. This applies to those who are in L-1 positions or any other lawfully approved status. Accounting must also be absolutely up to date, all withholdings made and all documentation available on call. We are in a new era. I-9 forms must be entirely completed and information brought current by internal audit.
Laptops of foreign and US citizen travelers entering the US are subject to inspection externally and internally. There are no exemptions.
Embassies and Consulates:
That said, we are pleased to advise you that most administrative personnel have been quite supportive in their adjudications of applicants in consular posts of E-2 visas and have maintained their correct interpretation of the law. Of course, local conditions always color our strategies with clients but even there we have realized good success.
On the immigrant visa side, applicants who are undecided as to whether to proceed on their applications once approved, may avail themselves of a one year delay in processing after notification from the National Visa Center. This self-imposed delay may also be helpful for a further delay where there is cause.
This agency has elected to dissect every application to its core and issue requests for further evidence in virtually every submission. It is not that we are submitting less documentation or that the cases are weak; indeed, it is the attempt of CIS to discourage filings of non immigrant and immigrant visas by interpreting the law strictly. We anticipate more of the same for the foreseeable future. Rest assured that we are working very hard at identifying legal strategies which will favor our clients now and into the future.
For the last year, Congress, CIS and the EB-5 stakeholders have been at odds in interpreting new rules and regulations. Senator Grassley has smoothly inserted his mentee into the CIS Ombudsman position with Department of Homeland Security and has, along with Senator Leahy ( a former huge supporter of EB-5) to attempt to dismantle the program entirely. Some Obama era regulations continue to plague the negotiations and only time will tell how this will be resolved.
With the summer recess coming into effect and with the health care debate still raging, we do not, as of this writing, know what the ultimate result will be by September 30, 2017 to continue the status quo or to have it amended. It is clear that this instability has affected the EB-5 market which still needs investors going to qualified projects. US Secretary of Commerce Mnunchin has stated that the Treasury only has sufficient funds to last through early September, but not through end September. It is likely that Congress will infuse a short term capital infusion to maintain government operations.
The Foreign Affairs Manual has received a positive interpretation allowing those seeking E-2 visas to still apply for a B tourist visa, there being no legal conflict. In addition, those who have filed for but not yet received approval on EB-5 immigrant visa applications, can similarly make consular applications for E-2 or B tourist visa applications. B visa applicants must maintain ties to home country and not participate in management decisions of the new enterprise in the US.
There are currently approximately 800 confirmed regional centers in the United States. Most are either dormant or not operational. In a view to streamlining the administrative burden of so many centers, USCIS has instituted some measures to close many of them by:
Reviewing applications, certifications, associated records, and information on the regional center.Reviewing supporting documentation in the annual certification. Conduct site visits. Interview personnel to confirm the certification and the regional center application.
Jay Peak and AnC Biomedical:
We are pleased to announce one silver lining in the EB-5 market place, which is the settlement of the litigation for the investors with the Receiver and Raymond James. Funds will begin to be released July 19, 2017 and hopefully allow all investors to find a ‘home’ for their EB-5 applications.
PERM Labor Certification & Residency:
With the labor unemployment statistics hovering just near 4.3%, the option of an EB-2 or EB-3 application for residency through job sponsorship seems extremely valuable. Many applicants are not aware of this option which takes two years to complete but which results in a full residency.
Aside from favorable market conditions such as above, the prospective employee should have a college or university education, an employer willing to sponsor him/her and have a tax return demonstrating at least enough funds for the payment of the FUTURE salary. Such salary levels change depending on the region.
Normal approval times are 18 months plus adjustment of status or consular proceedings, and includes all minors at time of filing. Children who surpass age 21 at time of consular processing will still be considered a ‘child’.
The selection of the job title, its content, location and other variables all may affect a desired result. As such, please consult a professional.
Mr. Behar was recently the keynote guest speaker at the Urban Land Institute in Ft Lauderdale and spoke about EB-5 financing in the market place. With the turbulence of the visa category but strong market demand, the 70 attendees were to some insight from some real estate experts in deal structures and capital stacks.
Those who have come to my office have seen a huge screen saver of my ‘boy’ Skippy, the wonder therapy dog who works with my wife Claire, a licensed clinical social worker. What you may not know is that Skippy turns 12 years old next month and still engages with seniors in our community almost daily making their lives that much better. Happy Birthday little boy!
Many clients, friends and contacts have called in the last few months to ask us what we anticipate and what we see as the road to visas and/or residency. We remain true to our calling of accepting only qualified clients with a very reasonable expectation of a positive result based on the law and procedures of the day. While there may be changes along the way, we will always be there to support you in your journey.
Have a wonderful summer!
Behar Law Group