January 08, 2016

Immigration – What to Expect in 2016!

We do not anticipate much happening in 2016 in terms of immigration reform. This is an election year and, although immigration is a central issue for every candidate running for president, it is not the central issue for congress and the Obama Administration. This is unfortunate in light of the numerous immigration problems we are currently facing because of our convoluted immigration system. Nevertheless, there are a few areas in which we may see some changes this year:

EB–1, EB–2, and EB–3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers

On December 31, 2015 the US Department of Homeland Security (DHS) published in the Federal Register the proposed rule, “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers”, to amend (“change”) the EB-1, EB-2, and EB-3 immigrant and non-immigrant visa programs.

As per the proposed regulation summary, “Many of these changes are primarily aimed at improving the ability of U.S. employers to hire and retain high-skilled workers who are beneficiaries of approved employment based immigrant visa petitions and are waiting to become lawful permanent residents (LPRs), while increasing the ability of such workers to seek promotions, accept lateral positions with current employers, change employers, or pursue other employment options.”

Consequently, the proposed regulation will change certain employment-based immigrant and nonimmigrant visa programs including: I-140 portability and other provisions in the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) and the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) and employment authorization for employees transitioning from employers. It will also provide for a one-time grace period of up to 60 days when employment ends for individuals holding E-1, E-2, E-3, H-1b, H-1B1, L-1 or TN nonimmigrant status and eliminate the requirement of adjudicating employment authorization documents (EAD) within 90 days.

In the H-1B contest, the proposed regulation would allow the employer to petition for an unlicensed worker, by demonstrating that the worker had applied for the appropriate license but was unable to obtain it because the issuing authority requires a social security number or employment authorization. This is definitely great improvement as it would eliminate unnecessary burdens to those who must obtain licenses to practice their profession.

Written comments to the proposed regulations must be submitted by February 29, 2016. To submit a comment click here.

EB-5 – Immigrant Investor Program

On Dec. 17, 2015, two days after Senate and House leadership recommended a “clean” extension of the EB-5 program until Sept. 30, 2016, Senator Flake, with Senator Cornyn and Senator Schumer, introduced S.2415: “EB-5 Integrity Act of 2015.” This is the sixth bill introduced in the 114th Congress that seeks to exclusively reform the EB-5 program. This bill includes a provision for permanent reauthorization of the EB-5 program.

The following are some of the main integrity measures designed to reform the EB-5 program:

Regional Center Program: the bill sets out job creation requirements, prohibits the use of investor funds to purchase publicly available bonds, and provides guidelines for Regional Center amendments.

Business Plan for Preapproval: the bill provides that an application must be filed prior to an investor’s filing of a petition. The bill lays out the numerous requirements for the business plan, and provides that approval of the business plan will be binding on future adjudication absent certain circumstances.

Reporting requirements in regional center annual statements are strengthened and expanded.

Bona Fides of Persons Involved with a Regional Center: the bill requires background checks and provision of biometric information for those involved with the regional center.

Ownership of a regional center by a foreign government or governmental entity is prohibited, including financial support.

New authorities for DHS: the bill provides broad new authorities for DHS to terminate a regional center, debar or suspend regional center program participants, or deny or revoke investor petitions based on a variety of enumerated grounds including threats to the national interest, fraud, or misrepresentation.

Annual regional center certification: required to demonstrate compliance with securities laws.

EB-5 Integrity Fund: funded by regional centers through a $20,000 or $10,000 fee per regional center, depending on the size of the regional center, and $1000 per investor.

Enhanced oversight of direct and third party promoters: such promoters must register with U.S. Citizenship and Immigration Services (USCIS) and meet certain requirements. Investors must sign a disclosure reflecting an understanding of the rules and procedures, and the fees involved.

New source of funds requirements: gift restrictions and loan restrictions enumerated. The required documentation includes a provision for 7 years of tax returns, if applicable in the taxing jurisdiction.

Effective dates: all amendments made under the Regional Center Program will be effective 90 days after date of enactment. The provisions governing source of funds and amendments to the regional center will be effective on the date of enactment.

New reports: the bill requires reports from the GAO and a multi-agency inspectors general report.

Transparency of agency operations: the bill contains provisions to enhance transparency of agency operations, monitor agency communications with stakeholders, and ensure non-preferential treatment of regional center and investor petitions.

This EB-5 Integrity Act of 2015 does not include reforms to current policies such as the definition of Targeted Employment Areas or minimum investment amounts. It is likely that hearings and additional legislation is presented when Congress sessions on this bill.

Deferred Action for Parents of Americans (DAPA)

After the 5th Circuit Court’s decision to stay the injunction order on November 9, 2015, the Obama administration requested that the Supreme Court review the 5th Circuit Court’s decision. It is up to the Supreme Court to hear the case this term, hold it for next term, or decline to hear the case altogether. However, in the legal community, it is expected that the Supreme Court will make a decision in this term, but the ruling won’t be issued until approximately June 2016. For the Obama administration, this is a priority because if the Supreme Court rules in its’ favor, DAPA will finally be implemented and thousands of undocumented immigrants will be able to obtain work authorization.

We will continue to monitor these and other immigration matters closely and will report as things unfold. In the meantime, let’s prepare to face the new changes!

Angela M. Lopez
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alopez@cowlesthompson.com
214.672.2162