Major Immigration Law and EB-5 Regulation Changes Make Legal Immigration Even More Difficult

The Trump Administration’s focus on border enforcement and its unprecedented assault on the rights of asylum seekers has been a big story.  Less recognized is its steady day-by-day steps to reduce legal immigration, frequently attributed to the influence of Stephen Miller, President Trump’s Senior Policy Advisor on Immigration.  From early Executive orders calling for “Extreme Vetting” and a Travel Ban aimed at Muslims, such changes have been non-stop.

Most pervasive has been unprecedented slow-downs in adjudicating immigration benefits by U.S. Citizenship and Immigration Services (CIS).   The last two years have seen the highest levels of CIS routinely issuing Requests for Further Evidence (RFEs) and outright denials of non-immigrant H-1B, L-1 and other work visa and immigrant employment-based petitions on routine correctable issues without prior notices.  In fact, for just H-1B non-immigrant petition for “specialty occupation” employees, the RFE rate has skyrocketed to 60%, a 300% increase since 2016 and the H-1B denial rate is up to 33% from as low as 6% as recently as 2015.  

Incredulously, CIS also revoked a long-standing INS/CIS policy memorandum, which provided that CIS adjudicators would give due deference to prior INS/CIS decisions.  For example, if CIS had favorably adjudicated an H-1B petition finding that the beneficiary is a qualified professional or an L-1 beneficiary to be a manager, the Examiner would recognize that prior decision in an extension of stay filing, unless there were material changes in the facts.  But under the new policy, CIS routinely denies extensions based on identical facts that had been previously deemed to be  approvable.  More insidious, is the behind-the-scenes diversion of significant CIS filing fees, intended to fund CIS services, instead to help fund increased border enforcement.  The CIS Acting Commissioner has also encouraged CIS personnel to take leaves of absence to work with the U.S. Customs and Border Protection  (CBP) on border enforcement. 

CIS adjudicators are also now under surveillance to make sure they are not approving too many petitions. Legal refugee admissions levels have been slashed. Public charge standards have been changed in order to dramatically cut legal immigration.

Perhaps of greater interest is the recently published final regulations that implement proposed regulations that will significantly reduce the EB-5 immigration preference option for investors. Given our highly restrictive  system, the EB-5 preference has been for many the only viable option for those seeking to legally immigrate and to become U.S. lawful permanent residents (as evidenced by a permanent resident card known as the “green card“).  Following the enactment of the Immigration Act of 1965 under President Lyndon B. Johnson and the abolishment of the National Origin System, one could immigrate only through an immediate U.S. citizen spouse, parent or adult son or daughter, or in some cases subject to the quota, through a lawful permanent resident spouse or parent.  Also, one could immigrate through a U.S. employer, who could prove the unavailability of any qualified, willing, able, and available U.S. workers or if one could also qualify for political asylum.  Thus, without family or employment sponsorship, it was nearly impossible to legally immigrate until the passage of the Immigration Act of 1990 under another Texan president, George H.W. Bush.

Such legislation created a new 5th employment-based preference (EB-5) for $1 million investors in a new enterprise, creating 10 full-time jobs for U.S. workers.  But if the enterprise was located in a targeted economic area (TEA), the minimum investment was only $500,000 to qualify for the TEA.   A TEA required that the enterprise be in a rural area or high unemployment area, defined as one and 1/2% of the national unemployment rate.

As the program evolved, particularly after the 2008/2009 economic recession, it became a de facto  $500,000 program marketed through major regional centers, including Roberto Contreras Jr.’s Houston EB-5.  A project could effectively combine U.S. census tracks so that they could be located in a TEA.  Under the EB-5 program, foreign nationals without any U.S. family ties or possible employer sponsorship, had a direct and highly predictable legal option for acquiring a “green card“ status.

But under the final regulations, effective November 21, 2019, the minimum investment goes up to $1.8 million and for projects in a TEA, up to $900,000. However, the new regulations also substantially limit the ability to combine census tracks; thus most recent regional center projects’ minimum investment amount increases from $500,000 to $1.8 million on November 21, 2019.

 If I have learned anything in my four decades plus immigration law practice, it is that what is legally possible one day may be eliminated the next, and that time is always of the essence.

Charles C. Foster, Chairman, Foster LLPSenior immigration policy adviser to President George W. Bush and past national president of the American Immigration Lawyers Association

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