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The Immigrant Investor Program (“EB-5 Program”) makes available 10,000 visas annually to immigrant investors who invest in commercial enterprises creating at least 10 full-time jobs for U.S. workers. However, the annual cap has never been met in the two decades since the program’s creation.

In a move designed to maximize utilization of the Immigrant Investor Program and respond to President Obama’s call to promote immigrants’ entrepreneurial spirit, U.S. Citizenship and Immigration Services (USCIS) has announced proposed enhancements to EB-5 visa processing, consisting of three main elements (pdf):

1. USCIS will accelerate processing for applications involving job-creating projects that are fully developed and ready to be implemented. Applicants and petitioners will have the option to request Premium Processing Service, which, for an additional fee, guarantees processing within 15 calendar days.
2. USCIS will create new intake teams with expertise in economic analysis and EB-5 Program requirements. Moreover, applicants submitting Form I-924 (i.e., applying to participate under a USCIS-designated Regional Center) will be able to directly communicate via email with the team to streamline issue resolution and rapidly address applicants’ questions or needs.
3. USCIS will convene an expert Decision Board, composed of an economist and adjudicators supported by legal counsel, to render an enhanced decision process concerning Form I-924 applications. For example, interviews will be available in instances where the Board’s preliminary recommendation is to request further information or to deny the application.

USCIS will accept public comment on the proposals until June 17, 2011.

Image credit: StudioX

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On Tuesday the Senate approved by a vote of 79-19 the conference report for the Department of Homeland Security Appropriations bill (H.R. 2892) that includes provisions extending the E-Verify employment verification system and other visa programs. The House approved the conference report on October 15.  Continue reading about this development on Littler's Washington D.C. Employment Law Update blog.
 

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Yesterday, the Senate approved by voice vote an amendment (S. AMDT. 1371) to the Department of Homeland Security (DHS) appropriations bill (H.R. 2892) that would make the E-Verify program permanent. Currently a voluntary initiative, E-Verify is an Internet based system operated by DHS in partnership with the Social Security Administration (SSA) that allows employers to electronically verify the employment eligibility of potential and current employees. The amendment – introduced by Sen. Jeff Sessions (R-Ala.) – requires that all government contractors who do work for the federal government use E-Verify to screen their potential hires. Following introduction of the amendment, Sen. Charles Schumer (D-NY) criticized the E-Verify program, saying that it is a flawed system that “creates havoc for both employers and employees.” Continue reading about this development on Littler's Washington D.C. Employment Law Update blog.

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U.S. Citizenship and Immigration Services (USCIS) announced (PDF) today that it will resume premium processing of I-140 immigrant visa petitions effective June 29, 2009. This new policy will allow for the premium processing of I-140 immigrant petitions for alien workers filed under the following categories: EB-1 Aliens with Extraordinary Ability, EB-1 Outstanding Professors and Researchers, EB-2 Members of Professions with Advanced Degrees or Exceptional Ability not seeking a National Interest Waiver, EB-3 Professionals, EB-3 Skilled Workers, and EB-3 Workers other than Skilled Workers and Professionals.

At this time premium processing is not available for I-140 petitions filed under the EB-1 Multinational Executives and Managers or EB-2 Members of Professions with advanced Degrees or Exceptional Ability seeking a National Interest Waiver.

Premium processing is a service offered by the USCIS that allows petitioners to pay an additional $1,000 fee in exchange for a guarantee that the USCIS will issue either an approval notice, a notice of intent to deny, a request for evidence, or open an investigation for fraud or misrepresentation within 15 days of receipt of the application and premium processing request. In addition to the accelerated processing time, petitioners also have access to a dedicated premium processing telephone line and email address to check on the status of a petition or ask other questions relating to their petition.

Given current USCIS processing times for I-485 Adjustment of Status applications and immigrant visa retrogression in many categories, it is not likely that this service will have a significant impact on overall green card processing times for most applicants. However, it may in some circumstances benefit petitioners and beneficiaries of I-140 applications.

This entry was authored by Sam Adair.

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Under current U.S. immigration law, 140,000 employment-based (EB) immigrant visas (green cards) are available to foreign workers every year. This number is broken down into preference categories, including the EB-1, EB-2, and EB-3 categories (the most widely used employment categories), as well as EB-4 (religious workers and other special immigrants), and EB-5 (investor) categories. The number is further broken down by an applicant’s country of birth resulting in approximately 2,800 available visas per country per EB category per year. Individuals born in countries with higher demand, including India and China, have significantly longer wait times to obtain green card approval due to the limited annual availability.

Each month, Charles Oppenheim of the U.S. Department of State provides an estimated calculation of immigrant visa availability for the following month, and this information is published through the State Department’s Visa Bulletin. These estimates form the basis for an individual’s eligibility to apply for an immigrant visa depending on his/her preference category and country of birth.

On June 10, Oppenheim made dire predictions for immigrant visa availability for the rest of 2009 and into 2010. The increased demand in the EB-4 “religious worker and other special immigrants” category, as well as the EB-5 “investor” category, is partly to blame. Most years there are significant unused numbers from those categories, which then pass through to the EB-1 and EB-2 categories. Without these additional numbers, EB-1 and EB-2 categories will be stretched very thin. Those born in India and China already experience backlogs in the EB-2 category, and it is anticipated that this will become much worse if there are no unused numbers that flow from the EB-4 and EB-5 categories.
 

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A bill introduced by Rep. Gabrielle Giffords (D-AZ) would extend the E-Verify program through September 2014. The Employee Verification Amendment Act of 2009 (H.R. 2679) would also order a General Accounting Office (GAO) study to determine the cause of errors made by this employment verification system, and its effects on small businesses.  Continue reading about this development on Littler's Washington D.C. Employment Law Update blog.

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In a late session yesterday, the Senate voted to approve the $410 billion omnibus appropriations bill (H.R. 1105). The House had approved this measure – which extends the E-Verify and EB-5 investor visa programs until September 30, 2009 – on February 25.  Continue reading about this development on Littler's Washington DC Employment Law Update blog.

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Embedded in the massive House Appropriations bill (H.R. 1105) that was approved on Wednesday by a vote of 245-178 are provisions extending the E-Verify and EB-5 investor visa programs until September 30, 2009. Both programs are set to expire on March 6, 2009.  Continue reading about this development on Littler's Washington DC Employment Law Update blog.

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