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3 Visa Authorizations Extended Through Dec. 9

Three visa programs that expired last September 30 were recently extended through Dec. 9, 2016. The visa programs are the Conrad State 30 Program, the non-minister special immigrant religious worker program (SR visa), and the EB-5 Regional Center Immigrant Investor program.

The Conrad 30 program allows state health departments and agencies to recommend the waiver of the 2-year foreign residence requirement for up to 30 foreign medical graduates upon completion of their J-1 exchange visitor program. This waiver allows them to change their status to H-1B or adjust to permanent residence and meet the demand for healthcare in medically underserved areas where doctors are in short supply.

An extension was also granted to the employment-based 4th preference category visa for non-minister religious workers. This visa grants special immigrant status to professionals and non-professionals working within a certain religious vocation other than being ministers. The extension also includes their accompanying spouses and children. To be eligible, an applicant must have been a member of a religious denomination with a bona fide non-profit religious organization in the US and he must have also have been working in a religious vocation or occupation aside from those that are purely administrative in nature.

Lastly, extension was granted to the EB-5 Regional Center Immigrant Investor Program (R51 and I51 visa categories). This comes as a welcome development since organizations of business leaders, trade associations and government officials had recently urged Congress and members of the Judiciary Committee to take a second-look at the program.

The EB-5 regional center program grants a green card to foreign nationals who invest in any of the regional centers all over the country. As of October 3, 2016, the USCIS has approved 863 regional centers across the country.

In its letter to the members of Congress, the EB-5 Investment Coalition highlighted the contribution that the program has done especially in turning the wheels of the American economy. According to the group, the program has created jobs, facilitated growth of vital industries in different parts of the country and essentially, has revitalized communities.

“The program, has facilitated billions of dollars in direct foreign investment into a diverse range of projects throughout the United States and has thereby generated over $15 billion from 2005-2015, creating well over 100,000 new US jobs in that time,” stressed the coalition.

Unlike the regular EB-5 program which requires the investor to create 10 full-time jobs in two years, a regional center investor can use the more relaxed requirement of indirect job creation. Furthermore, for regional centers $500,000 is usually sufficient for investment as opposed to the $1,000,000 required under the regular EB-5 program making it a more welcoming program to anyone who wishes to invest in a targeted employment area.

Immigration Options of the Investor

Much press has been given to immigrant investors in recent years. One of the main reasons why the EB-5 immigrant investor program has captured the attention of so many prospective immigrants is the low demand for visas under this category relative to the heavily backlogged third preference (EB-3) and, for some countries, the second preference (EB-2) categories.

At present, the EB-5 program presents one of the fastest routes to a green card, be it through the regular program which requires a $1,000,000 direct investment or the regional center or pilot program, in which an indirect investment of $500,000 is usually sufficient.

However, there are avenues that have long existed for other types of investors, particularly those who do not seek permanent resident status in the U.S.

Immigration law and regulations allow treaty traders (E-1) and treaty investors (E-2) to enter the U.S. for specific purposes as non-immigrants. However, one main distinction between them and most non-immigrants is that they can extend their stay almost indefinitely. After an initial period of two years, E-1 traders and E-2 investors can renew their stay every two years for an unlimited number of times if they maintain an intention to depart the U.S. at the expiration or termination of their status.

An E-1 treaty trader is a national of a country with which the U.S. maintains a treaty of commerce and navigation who enters the U.S. solely to engage in international trade. Trade is defined as the existing international exchange of items of trade for consideration between the U.S. and the treaty country, and includes goods, services, international banking, insurance, transportation, tourism, technology and some news-gathering activities.

The trade carried on by the treaty trader must be substantial, meaning that it must be sizable, sufficient to ensure a continuous flow of trade between the two countries. Substantiality cannot be based on a single transaction no matter how monetarily valuable it is. The trade must also be principally between the U.S. and the treaty country, i.e. more than 50% of the total volume of the trade must be between the two countries.

An E-2 treaty investor, on the other hand, is one who is seeking to enter the U.S. to direct and develop a business in which he has invested, or is in the process of actively investing, a substantial amount of capital. Like the E-1 treaty trader, the E-2 treaty investor must also be a national of a treaty country.

For E-2 purposes, substantiality is determined by weighing the amount of funds invested against the total cost of purchasing or establishing the enterprise. It is an amount considered sufficient to ensure the investor’s financial commitment to the enterprise’s success.

A higher proportion of investment is required of small businesses for the investment to be substantial. For instance, while an E-2 investor may be allowed to fund only 10% of an investment worth $10 million, for an investment of less than $100,000, the E-2 investor would normally be required to provide the entire investment.

The investment must be in a bona fide enterprise or one that is a real, active commercial or entrepreneurial undertaking. It may not be idle or passive investment, such as in stocks or undeveloped land. Furthermore, the E-2 investor’s investment cannot be marginal or solely to provide for himself and his family. A marginal enterprise is one that does not have the capacity at present or within five years to generate more than enough income for the investor and his family.

An employee of the E-1 trader and E-2 investor may qualify for the same classification if he is of the same nationality as the treaty employer and if the position is primarily executive or supervisory in character, giving the employee ultimate control and responsibility for the operation of the enterprise. If the employee is employed in another or lower capacity, to be eligible for E-1 or E-2 classification he must have special qualifications or skills essential to the operations of the business.

E-1 traders and E-2 investors, as well as their employees, may be accompanied or followed by their spouses and unmarried children below 21 years old. The dependent family members need not be of the same nationality as the trader, investor or the E-1/E-2 employee.

Heavy Demand for EB-5 Investor Visa

Due to heavy demand, for the first time since the program began twenty years ago a cut-off date might have to be created for the employment-based fifth preference (EB-5) category. The backlog, if it does occur, will affect applicants from China and likely take effect next year. Currently, the EB-5 category is current and visa numbers are available to applicants from any country.

The Department of State made this announcement in the December 2012 visa bulletin and said that based on the current demand for EB-5 visa numbers, a cut-off date might be necessary sometime during the second half of fiscal year 2013.

The EB-5 visa category allows foreign nationals who can make substantial investments to become permanent residents. There are two ways by which one can become an EB-5 investor. The first is through the regular program which requires the investor to make a $1 million investment ($500,000 in a rural or high unemployment area) in a new commercial enterprise which will create at least ten full-time jobs.

The second way is through the pilot program which permits investments in designated regional centers that will create at least ten jobs, directly or indirectly. There are more than 70 regional centers today and most of them require a $500,000 investment. The regional center program was recently extended until September 30, 2015.

The alien investor must file an I-526 petition along with supporting documents showing the investment in the enterprise or regional center and demonstrating that the funds came from a lawful source. Once that is approved, he can file for a conditional green card. The condition will be removed two years after the investor’s admission as a conditional resident upon showing that the required number of jobs was created.

Congress allotted 10,000 visa numbers to EB-5 investors and 3,000 of those to investors in regional centers. Spouses and unmarried children under 21 are included in the count. But the program has drastically grown in popularity in recent years that a waiting line might be created next year. For example, in 2006 the USCIS received less than five hundred I-526 petitions. In 2012, it received over 6,000 petitions.

Most of the demand comes from Chinese nationals. Since the worldwide demand under EB-5 is not enough to reach the quota, unused visa numbers fall across to China, which would have been an oversubscribed country if not for that method of visa allocation. If the worldwide demand for EB-5 visa numbers goes up and the quota is reached, then China would become oversubscribed and a waiting line would be created.

A waiting line means that investors whose priority dates are prior to the cut-off date would not be able to immigrate until an immigrant visa is immediately available. An investor who is in the U.S. must be careful not to lose lawful status in order to be eligible for adjustment of status once a visa is available. Even if the investor has an approved I-526 petition, the investor cannot file for adjustment of status if a visa number is not yet available to him/her.

Right now, nationals of countries other than China can still look to the EB-5 visa as a viable option for permanent residence. In contrast with the family-based and other employment-based preferences where the delays range from several years to more than two decades, the EB-5 category with a total processing time of approximately one year is still one of the fastest routes to a green card.

Programs for Investors, Doctors and Religious Workers Extended

President Obama recently signed into law a Congressional extension of four programs until September 30, 2015. These programs are the EB-5 regional center program for immigrant investors, the Conrad 30 program for J-1 visa holders, the special immigrant visa for religious workers, and E-verify. These programs were slated to expire on September 30, 2012 but have been regularly reauthorized since their inception.

The EB-5 regional center program grants a green card to foreign nationals who invest in any of the more than 70 regional centers in the U.S. Unlike the regular EB-5 program which requires the investor to create 10 full-time jobs in two years, a regional center investor can use the more relaxed requirement of indirect job creation.

Another main difference is the amount of capital to be invested. Under the standard program the investment must be $1,000,000 unless it is made in a targeted employment area, which means that the place is a rural or high unemployment area. On the other hand, $500,000 is usually sufficient for investment in regional centers because most of them are already in targeted employment areas.

As many as 3,000 visas can be granted regional center investors annually. With a current processing time of 8 months and ongoing efforts to speed up the process in order to promote the program’s job-creation benefits, the EB-5 visa is one of the fastest routes to a U.S. green card.

Another program extended by the law is the employment-based 4th preference category visa for non-minister religious workers. This visa grants special immigrant status to individuals who are in a religious vocation or occupation but are not religious ministers.

The applicant must have been a member of a religious denomination with a bona fide non-profit religious organization in the U.S. and he must have also been working in a religious vocation or occupation. A religious vocation or occupation excludes positions that are primarily administrative in nature.

There are 5,000 visas reserved for this category which includes accompanying and following-to-join spouses and children.

The Conrad 30 program allows state health departments and agencies to recommend the waiver of the 2-year foreign residence requirement for up to 30 foreign medical graduates per year in J-1 status who agree to serve in medically underserved areas. This waiver allows them to change their status to H-1B or adjust to permanent residence and meet the demand for healthcare in areas where doctors are in short supply. Those who obtain the waiver are not subject to the annual H-1B cap.

The E-Verify system is an Internet-based program that allows a participating employer to electronically confirm the employment eligibility of a newly-hired employee using the databases of the USCIS and the Social Security Administration.

Currently, more than 400,000 employers use the program and in the past year more than 20 million employment verification queries have been made using E-verify. While the program is still voluntary for most employers, many states have passed laws making compliance with E-verify mandatory for some businesses.

Premium Processing for EB-5 Investors Proposed

The current immigrant visa backlog for the family-based preference categories and the employment-based second and third categories currently varies from over three years to two decades, depending on the visa category and the applicant’s country of birth.

In stark contrast to these long waiting times, the investor visa (EB-5) only takes about a year to obtain if all eligibility requirements are met, making it the fastest route to a U.S. green card.

Even with the relatively short processing times, the USCIS is still finding ways to enhance the EB-5 program in order to realize its job-creation potential. These changes are meant to attract foreign entrepreneurs and businesses to create jobs in the United States, in line with the government’s goal of driving U.S. innovation and stimulating economic growth.

These measures should have been taken a long time ago. Studies show that immigrants create jobs. They are 30% more likely to start a business than non-immigrants and make up 16.7% of all new business owners in the U.S. Top companies such as Intel, Google, Yahoo and eBay were once founded by immigrants.

Recently the USCIS proposed improvements in the EB-5 program’s intake and review process in Regional Center applications.

A Regional Center is a public or private entity that promotes economic growth, regional productivity, job creation and domestic capital investment. An application for designation as Regional Center is made on Form I-924, while the petition from the investor is made on Form I-526.

The USCIS proposes to accelerate the processing of “actual” applications for shovel-ready business projects. “Actual” I-924 applications are job-creating projects that are fully developed, ready to be implemented, and for which I-526 petitions could already be filed.

Processing times for these “actual” I-924 applications are proposed to be accelerated from 4 months to 2 months. The targeted processing time for I-526 petitions associated with an approved “actual” application would also be accelerated from 5 months to 2 months. With premium processing, which the USCIS plans to make available in these cases, an I-924 application and an I-526 petition could be approved in as short as 15 days.

The USCIS also proposes to create specialized intake teams for I-924 applications which are often complex and require sophisticated economic analysis. Team members would include USCIS economists, business analysts and adjudicators, supported by legal counsel.
There would also be an expert Decision Board that renders decisions on the I-924 applications and afford applicants the opportunity for an in-person or telephonic interview.

The EB-5 visa category was created by Congress in 1990 for immigrants who could invest $1 million (or $500,000 in rural or high unemployment areas) in a new commercial enterprise that will benefit the U.S. economy and create at least 10 full-time jobs within 2 years of the investor’s admission into the U.S.

To attract more investors, Congress created in 1992 a “pilot program” which has been extended through September 30, 2012. Compared to the regular EB-5 program, investments under the pilot program must be made in a designated Regional Center and there is no need for the investor to employ U.S. workers as long as at least 10 jobs are created directly or indirectly as a result of such investment.

Each year, approximately 10,000 visa numbers are available for the EB-5 category, with 3,000 going to investors in rural or high unemployment areas, and 3,000 to investors in Regional Centers. In 2010, only a total of 1,885 visas were issued, down from more than 4,000 issued in 2009. The EB-5 program has never met its annual cap since its inception.

Once the I-526 petition is approved under either the regular or pilot program, the investor and his/her dependents become conditional permanent residents. Within 90 days before the second anniversary of the investor’s admission, he/she must file an I-829 petition to remove the condition.

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