New EB-5 Investment Amount Possible in August 2018
On May 9, 2018, the Office of Management and Budget published its spring regulatory agenda, which proposed policies that would increase investment requirements for the EB-5 Immigrant Investor Program by up to 270% and rescinding states’ ability to designate high-unemployment areas for investment. The U.S. Citizenship and Immigration Services (USCIS) indicated that it will take final action on the previously proposed EB-5 Immigrant Investor Program Modernization Rule in
August 2018
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The Department of Homeland Security (DHS) initially proposed alterations to the EB-5 program in January 2017. In particular, DHS proposed raising the minimum investment threshold for high employment areas from $1 million to $1.8 million, and from $500,000 to $1.35 million for targeted high-unemployment areas. In its justification, DHS noted that the current EB-5 program is oversubscribed and immigrant investor programs in other countries are far more expensive than the U.S. EB-5 program.
The rule also seeks to alter the process of designating Targeted Employment Areas (TEA) by removing the states’ ability to designate areas of high unemployment and exclusively reserving this power for DHS. It would also amend TEA configurations to emphasize only the census tracts in which the enterprise is principally doing business.
Individuals interested in the EB-5 Immigrant Program are advised to speak with our experienced immigration attorneys to strategize their cases going forward.
For more information, please contact the experienced immigration attorneys at Monty & Ramirez LLP at 281-493-5529 or via email at
info@montyramirezlaw.com
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USCIS Alters Unlawful Presence Calculation for Nonimmigrant Students
On May 10, 2018, USCIS issued a policy memorandum changing the way the agency will calculate the accrual of unlawful presence for individuals and their dependents in the U.S. in student (F nonimmigrant), exchange visitor (J nonimmigrant), or vocational (M nonimmigrant) status by starting the clock immediately after their authorized activity concludes, as opposed to when they are found in violation of their status. The policy will take effect on
August 9, 2018
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Under the previous long-standing policy, an F, J or M nonimmigrant student admitted into the U.S. for duration of status (“D/S”) did not immediately begin accruing unlawful presence absent a formal finding of status violation by USCIS or upon issuance of an order of removal, deportation or exclusion by an Immigration Judge.
Now, on or after August 9, 2018, a foreign student who fails to renew or maintain his or her status will immediately begin to accrue unlawful presence the day after either the individual drops out of the course of study or the individual’s program ends. Further, any student who previously let his or her nonimmigrant status lapse before August 9, 2018, and has already dropped out of or completed his or her program, will begin accruing unlawful presence on August 9
th
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Individuals who accrue more than 180 days of unlawful presence and then depart the U.S. may be subject to a three-year bar from readmission, and those individuals who accrue more than one (1) year of unlawful presence may be barred from readmission for ten (10) years. Employers should note that this policy change will directly impact their ability to offer employment to a nonimmigrant student candidate in the future.
Please contact one of our experienced immigration attorneys if you believe this change in policy has directly impacted a F, J or M nonimmigrant employee to strategize their cases going forward. Our office will continue to monitor developments with respect to these changes and will post updates as additional information becomes available.
For more information, please contact the experienced immigration attorneys at Monty & Ramirez LLP at 281-493-5529 or via email at
info@montyramirezlaw.com
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Proposed Extreme Vetting to be Added to All Nonimmigrant Visa Applications
On March 30, 2018, the U.S. Department of State (DOS) issued a notice of request for public comment in the Federal Register regarding a new rule it intends to apply to all nonimmigrant visa applications by foreign nationals on Form DS-160. The proposed rule would require foreign nationals coming to the U.S. to disclose five (5) years of social media history and is viewed as the administration’s most recent attempt to continue “enhanced vetting” of visa applications. The rule will not take effect immediately, however the proposed 60-day comment period ends on May 29, 2018.
The Online Application for Nonimmigrant Visa (DS-160) is used to collect biographical information from all individuals seeking a nonimmigrant visa. The consular officer uses the information collected in the DS-160 to determine the applicant's eligibility for a visa. In Fall 2017, the Trump administration announced similar “extreme vetting” requirements only for immigrant visas. Now, the proposed changes to Form DS-160 would include aspects of extreme vetting in all nonimmigrant visa applications, including temporary work visas.
In addition to disclosing five (5) years of social media handles on specific platforms, nonimmigrant visa Applicants will also be required to submit five (5) years of phone numbers and e-mail addresses, any family history of involvement in terrorism and information on international travel. Diplomatic-type visa applicants would be exempted from this collection.
Please contact the experienced attorneys at Monty & Ramirez to ensure your nonimmigrant and immigrant visa applications are adequately prepared to ensure compliance with these recent DOS requirements.
For more information, please contact the experienced immigration attorneys at Monty & Ramirez LLP at 281-493-5529 or via email at
info@montyramirezlaw.com
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Temporary Protected Status for Honduras to End in January 2020
On May 4, 2018, the Government announced its decision to terminate Temporary Protected Status (TPS) for Honduras.
TPS for Honduras has been in place since 1998. This decision affects about 57,000 Hondurans in the country with TPS. Many of these individuals have legally resided in the U.S. for nearly two (2) decades and have U.S. citizen children. This announcement follows similar recent decisions by the administration to end TPS for El Salvador, Haiti and Nepal. The effective date of termination for Honduras is
January 5, 2020
.
Honduran citizens with current TPS status will be required to re-register for TPS and apply for Employment Authorization Documents in order to legally work in the U.S. until the effective date of termination. Submissions for re-registration should not be sent until the re-registration period is announced in the Federal Register notice.
Employers should be reminded that Employment Authorization Documents (EAD) were previously automatically extended issued under the TPS designation of Honduras through July 4, 2018. However, we encourage TPS beneficiaries to re-register and file new EAD applications as early as possible once the Federal Register notice is posted in order to avoid a lapse in employment authorization.
For more information, please contact the experienced immigration attorneys at Monty & Ramirez LLP at 281-493-5529 or via email at
info@montyramirezlaw.com
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Lawsuits Filed Challenging Termination of TPS for El Salvador, Haiti, and Honduras
The Government has terminated TPS for six (6) countries since September 2017: Honduras, Nepal, El Salvador, Haiti, Nicaragua, and Sudan. In all, over 250,000 individuals who have had lawful status to live and work in the United States pursuant to TPS will lose that authorization before the end of next year, placing them at risk of deportation.
The Trump administration’s decisions to end TPS protections for these countries have inspired several recent lawsuits alleging the changes are racially motivated and violate the constitutional rights of immigrants and their children. We will await the decisions made in these cases and will provide updates as they become available. In the meantime, we encourage employers of employees in TPS status to consult with our experienced immigration attorneys to review other immigration options available to them.
For more information, please contact the experienced immigration attorneys at Monty & Ramirez LLP at 281-493-5529 or via email at
info@montyramirezlaw.com
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Federal Court Orders Resumption of DACA After 90-Day Period
On April 24, 2018, the Federal District Court for the District of Columbia ruled against the U.S. Department of Homeland Security’s (DHS) “unlawful” decision to rescind the Deferred Action for Childhood Arrivals (DACA) program. The court issued an order vacating the rescission but is permitting the Trump Administration ninety (90) days to offer DHS the opportunity to provide a more sound justification for the program’s termination. Should DHS fail to justify their reasoning, DHS will be ordered to once again accept and process new and renewal DACA applications.
As a result of the decision being on hold for 90 days, there are NO new changes to the program as of now. Employers may continue to employ DACA recipients with valid EADs, and note that due to the nationwide injunctions issued by the U.S. District Courts for the Northern District of California and the Eastern District of New York earlier this year, USCIS is still required to accept, and is currently processing, DACA renewal applications.
Employers should note that all employees must maintain employment authorization. Employees with valid work authorization cannot be fired solely because of their current immigration status. We recommend that employers review their internal procedures for I-9 compliance for all employees.
For more information, please contact the experienced immigration attorneys at Monty & Ramirez LLP at 281-493-5529 or via email at
info@montyramirezlaw.com
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USCIS Completes FY 2019 H-1B Cap Lottery
On April 6, 2019, USCIS announced that it had reached the congressionally mandated 65,000 H-1B cap for fiscal year (FY) 2019 and received sufficient H-1B petitions to meet the 20,000 cap for the advanced degree exemption. Further, on May 15, 2018, USCIS announced that data entry was completed for all H-1B petitions selected. Those selected will continue to receive receipt notices in the mail, while those rejected will have their filings returned along with filing fee checks.
Employers are reminded that Premium Processing for H-1B cap-subject petitions was suspended in March 2018, with the suspension expected to last until September 2018. As such, processing times are anticipated to be four (4) to six (6) months. As in the previous fiscal year, suspending premium processing will again allow USCIS additional time to review H-1B petitions. In the event of receiving a Request for Evidence (RFE), employers are advised to contact our experienced immigration attorneys to strategize their cases going forward. With the heightened increase of scrutiny in H-1B petitions, employers are urged to be prepared to adequately document their responses going forward.
For more information, please contact the experienced immigration attorneys at Monty & Ramirez LLP at 281-493-5529 or via email at
info@montyramirezlaw.com
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New H-1B Rule Interpretation Announced Regarding “Closely Related” Entities
On March 23, 2018, USCIS announced a significant change in its interpretation of the H-1B regulations regarding “related entities” in cases where multiple employers file cap-subject H-1B petitions for the same employee beneficiary. The USCIS policy memorandum significantly broadens the agency’s interpretation and notes that a determination of whether two (2) entities are related is no longer solely limited to an examination under corporate law. Now, despite the lack of common corporate ownership and control, two (2) entities can be considered “related” if they are both essentially offering the same beneficiary the same job.
U.S. regulations provide that “related entities” may not file more than one (1) H-1B cap-subject petition for the same job opportunity on behalf of the same alien in the same fiscal year, or else all such H-1B cap-subject petitions filed on that alien’s behalf by the related entities will be denied and/or revoked. This regulation was issued to deter employers from improving their chances of being selected in the H-1B lottery. The H-1B regulations do not specifically define the term “related entities,” but the regulations parenthetically state that related entities may include relationships such as a parent company, subsidiary, or affiliate company.
In determining whether two (2) jobs are substantially the same, USCIS will make a fact-based determination based on the factors including familial ties, proximity of location, similar work assignments, substantially similar supporting documentation and employment history. If you believe your H-1B case has been or will be impacted, please contact the experienced immigration attorneys at Monty & Ramirez to strategize your case going forward.
For more information, please contact the experienced immigration attorneys at Monty & Ramirez LLP at 281-493-5529 or via email at
info@montyramirezlaw.com
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DOS Notice of Termination of the U.S. - Ecuador Bilateral Investment Treaty
The United States-Ecuador Bilateral Investment Treaty has been terminated effective May 18, 2018. The U.S. Department of State (DOS) announced that the bilateral investment treaty had been terminated after receiving notice from the Ecuadorian government of the termination.
Ecuadorian nationals may apply for or renew E-2 Treaty Investor visas until
May 18, 2028
, provided that the qualifying investment was made or acquired before May 18, 2018. Ecuadorian nationals who are no longer eligible for E-2 Treaty Investor classification should consult our experienced immigration attorneys to review alternative routes available to them.
For more information, please contact the experienced immigration attorneys at Monty & Ramirez LLP at 281-493-5529 or via email at
info@montyramirezlaw.com
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The June 2018 Visa Bulletin has arrived!
If you have questions about the June 2018 Visa Bulletin, contact the experienced immigration attorneys at Monty & Ramirez LLP at 281-493-5529 or via email at
info@montyramirezlaw.com
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Monty & Ramirez LLP
150 W. Parker Road, 3rd Floor
Houston, Texas 77076
Phone: 281.493.5529
Family Immigration: 713.289.4546
Toll-Free: 1.866.427.0152
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