September 2014 Newsletter
In This Issue
DOS Announces Major Developments in Availability of China EB-5 Visa Numbers
At an immigration law conference sponsored by the American Immigration Lawyers Association on August 23, 2014, Charles Oppenheim of the U.S. Department of State (DOS) announced that effective immediately, the employment-based fifth preference category (EB-5) is "unavailable" for investors born in China. Visa numbers will become available again when the new federal fiscal year starts on October 1, 2014.
The practical implications of this announcement are quite minimal for Chinese investors who are on track to complete the immigrant visa process within the next few months. EB-5 applicants from China who have already been scheduled for their initial immigrant visa interviews in August and September 2014 will still attend and may be issued visas. U.S. Citizenship and Immigration Services (USCIS) will still accept I-485 applications to adjust status for EB-5 applicants in the United States.
Long-term implications for EB-5 investors from China are more consequential. Mr. Oppenheim advised that in the spring of 2015, DOS will probably establish a cut-off date for EB-5 China, meaning that the category will "retrogress." Mr. Oppenheim estimated that the initial backlog will be about two years. Based on the number of I-526 EB-5 petitions currently pending at USCIS (approximately 10,300), the current I-526 approval rate of 77%, and the speed and rate of adjudication (13 to 16 months), predictions are that the EB-5 cut-off date for China may quickly increase to three years, given the substantial number of cases already in process.
The DOS announcement does not affect EB-5 investors from other countries.
These developments are expected to significantly affect the EB-5 program as a whole, given that investors from China make up more than 80% of all EB-5 cases. Investors from China will have to wait longer to obtain their visas. The delays will also affect U.S. developers who rely on EB-5 money in their projects. If you are an EB-5 investor or project developer, contact your Alliance of Business Immigration Lawyers attorney for more detailed advice.
DOS Changes Fees for Visa and Citizenship Services
Effective September 6, 2014, the Department of State is amending the Schedule of Fees for Consular Services for certain nonimmigrant visa application processing fees, certain immigrant visa application processing and special visa services fees, and certain citizenship services fees. Included are two categories of petition-based nonimmigrant visas and the tiered application processing fees for immigrant visas. The interim final rule also amends the security surcharge for immigrant visa services and the fees for certain immigrant visa services. Lastly, the rule raises the application processing fee for renunciation of U.S. citizenship and lowers the hourly consular officer time charge. The Department of State said it is adjusting the fees in light of the findings of a recent Cost of Service study to ensure that the fees for consular services better align with the costs of providing those services.
Some of the changes include:
CBP Responds to I-94 Web Portal and ESTA Questions
The American Immigration Lawyers Association (AILA) held a teleconference with Suzanne Shepherd, Director of the Electronic System for Travel Authorization (ESTA) at U.S. Customs and Border Protection, on August 6, 2014, on issues with the I-94 Web portal and travel history information. Topics included incomplete or inaccurate data on the portal, redress for falsely recorded departures, and automated I-94 corrections.
According to AILA's teleconference minutes, Ms. Shepherd said that the information on the I-94 website is taken from the I-94 database, not from any other databases related to a traveler's admissions/departures. CBP has plans to create a crossing history for U.S. lawful permanent residents and U.S. citizens. Ms. Shepherd said this will be a difficult task, however. CBP will need to determine how to query and retrieve data, and resolve privacy issues. CBP does not have a launch date or a set plan yet.
Ms. Shepherd noted that CBP has reached out to U.S. Citizenship and Immigration Services (USCIS) regarding USCIS denials based only on I-94 database information. She said USCIS is training its service center adjudicators not to use I-94 database information alone to make any decisions. Ms. Shepherd asked that examples of USCIS issuing decisions based on I-94 database information alone be sent to CBP through the AILA liaison.
In response to questions about inaccuracies in the system, Ms. Shepherd noted that data entry error can result in a no-match. Matching algorithms should alleviate this problem, she said. For example, if a traveler's name is spelled wrong on one or more occasions, a different travel history may be created under the alternate spelling. She said that if this happens, the ESTA office or a Deferred Inspection office can correct this by combining the two data sets.
Regarding those whose travel histories are unavailable or unlisted in the online system, Ms. Shepherd noted that the online records include only instances in which an actual I-94, whether paper or electronic, was issued. Therefore, Canadians entering at a land border will not have a crossing history, nor will anyone not issued an I-94 before the electronic I-94 system was implemented.
Ms. Shepherd said that if someone needs a complete travel history, including data that is not reported online, a Freedom of Information Act (FOIA) request is still the way to request a complete report.
In response to a question about whether non-controlled admissions records for Canadians are available in the online system, Ms. Shepherd noted that if a traveler is issued or has surrendered an I-94, the information will be available. If not, it will not be available. She pointed out that this may result in oddities in records. For example, at the land border, if a traveler surrendered an old I-94 at the time of admission rather than upon the previous departure, and was issued a new I-94 on same day, the I-94 website will show the departure and arrival on same day.
Several AILA members have reported instances in which people who had purchased plane tickets to depart the United States but then never used the ticket to depart nevertheless were recorded as having departed. In one of those cases, the person went to Deferred Inspection office, and the officer there, upon viewing the unused plane ticket that corresponded with the incorrectly recorded departure date, was able to correct the I-94 record to delete the erroneous departure.
In the event of a discrepancy between the information in the entry-exit database and either a paper I-94 or an admission stamp (e.g., they show different expiration dates), Ms. Shepherd said that most of the time this will be due to CBP officer error and that Deferred Inspection is an appropriate way to attempt to resolve such an inconsistency.
Ms. Shepherd asked AILA to provide specific examples of any difficulties with correcting erroneous information or with Deferred Inspection.
More information on ESTA is available here.
USCIS Clarifies Policy on Using Expedited Delivery Services
U.S. Citizenship and Immigration Services (USCIS) has clarified aspects of its recent notice announcing that certain applicants and petitioners may select expedited delivery service to receive certain documents.
USCIS noted that those whose petitions or applications are processed at a USCIS Service Center or the National Benefits Center who wish to receive certain documents by overnight delivery service must include a valid prepaid air bill or shipping label with their filing. The agency also noted that this option is only available for receiving the following types of documents from certain USCIS facilities:
USCIS Service Centers or the National Benefits Center: Advance parole documents (not including the combination Employment Authorization Document/Advance Parole Card), re-entry permits, and refugee travel documents.
USCIS Service Centers only: Approval notices and notices of denial.
To ensure that overnight delivery requests are not delayed, USCIS advises:
USCIS's clarifying announcement is available here.
USCIS Advises on Ebola-Related Relief for Nationals of Guinea, Liberia, and Sierra Leone in the United States
U.S. Citizenship and Immigration Services (USCIS) announced that it is closely monitoring the Ebola disease outbreak in West Africa and is offering relief measures to nationals of those three countries who are currently in the United States. Immigration relief measures that "may be available if requested" include:
International Employee Recruiter Sentenced to Two Years for Visa Fraud
U.S. District Judge Paul W. Grimm recently sentenced Milen Radomirski, a Bulgarian national residing in Germantown, Maryland, to two years in prison for visa fraud. Judge Grimm also ordered Radomirski to forfeit $100,000.
"American businesses are permitted to sponsor foreign workers to enter the United States lawfully under the H-2B visa program, but Milen Radomirski undermined that program by falsely vouching for hundreds of aliens who were not expected to comply with the terms of the visa," said U.S. Attorney Rod J. Rosenstein.
According to the USCIS announcement, from 2003 to August 2013, Mr. Radomirski worked for a pool service company in Maryland that provided lifeguards and pool maintenance in the Washington, DC, metropolitan area. As part of his employment, Mr. Radomirski recruited international workers that his company could sponsor to work in the United States on H-2B visas and other short-term visas. Mr. Radomirski admitted that he fraudulently obtained more than 100 H-2B temporary worker visas.
From 2006 through 2011, Mr. Radomirski's company submitted applications for approximately 789 H-2B visas. His company certified to the U.S. Department of Labor that it had not sought or received payment from the workers to obtain the visas, and specified to USCIS the jobs in which the foreign nationals would be employed. Sponsored workers could not be employed by any other company. The company was required to notify DHS if any H-2B workers failed to report to work within five days after their specified start dates or if workers absconded or were terminated.
Mr. Radomirski admitted that he charged visa beneficiaries money in exchange for including them on his company's petitions for H-2B visas. He knew that many of the visa beneficiaries would not work for his company at all, would only work at his company for a short period of time, or would work for other employers in addition to his company.
The announcement is available here.
Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:
Hodkinson Law Group News
Shauna Maguire participated in the Gladstone Park 5K in London In August. We're all busy training for various longer races that will take place in September. More about this next month, if we survive...