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June 2012 Visa Bulletin: EB-2 Priority Dates for India and China Currently Unavailable

The recently published U.S. Department of State Visa Bulletin for June 2012 indicates that the EB-2 priority dates for India and China are currently unavailable and it will remain so for the remainder of FY-2012. The Visa Bulletin mentions that despite the retrogression of the China and India EB-2 preference cut-off date to August 15, 2007, demand for numbers by applicants with priority dates earlier than that date remained excessive. It further mentioned that while it is impossible to accurately estimate how long it may take to return to the May 1, 2010 cut-off date which had been reached in April 2012, current indications are that it would definitely not occur before spring 2013. DOS has indicated that the EB-2 numbers for China and India will once again be available beginning October 1, 2012 under the FY-2013 annual numerical limitations.

Meanwhile, the EB-2 numbers for other countries remained current, along with EB-1, EB-4, and EB-5 numbers for all countries. In the EB-3 category, the priority dates for professionals and skilled workers advanced from 04/01/05 to 08/08/05 in respect of China; from 09/08/02 to 09/15/02 in respect of India; from 05/01/06 to 05/22/06 in respect of Philippines, and from 05/01/06 to 06/08/06 in respect of all other countries.

In the EB-3 Other Workers category, the priority dates remained at 04/22/03 in respect of China, but advanced from 09/08/02 to 09/15/02 in respect of India; 05/01/06 to 05/22/06 in respect of Philippines, and from 05/01/06 to 06/08/06 in respect of all other countries.

Contact VisaPro immediately if you need any assistance in filing for an Adjustment of Status application or for an Immigrant Visa.

May 2012 Visa Bulletin: EB-2 Priority Dates for India and China Move Back to 15-August-2007

In the recently published U.S. Department of State Visa Bulletin for May 2012, the EB-2 priority dates for India and China retrogressed and moved back to 15 August 2007, from May 01, 2010 in the April 2012 Visa Bulletin. Meanwhile, the EB-2 numbers for other countries remained current, along with EB-1, EB-4, and EB-5 numbers for all countries.

In the EB-3 category, the priority dates for professionals and skilled workers advanced from 03/01/05 to 04/01/05 in respect of China; from 09/01/02 to 09/08/02 in respect of India; and from 04/08/06 to 05/01/06 in respect of all other countries.

In the EB-3 Other Workers category, the priority dates remained at 04/22/03 in respect of China, but advanced from 09/01/02 to 09/08/02 in respect of India; and from 04/08/06 to 05/01/06 in respect of all other countries.

Contact VisaPro immediately if you need any assistance in filing for an Adjustment of Status application or for an Immigrant Visa.

April 2012 Visa Bulletin: EB-2 Priority Dates for India and China remain at 05/01/10

In the recently published U.S. Department of State Visa Bulletin for April 2012, the EB-2 priority dates for India and China remain unchanged at May 01, 2010. Meanwhile, the EB-2 numbers for other countries remained current, along with EB-1, EB-4, and EB-5 numbers for all countries.

In the EB-3 category, the priority dates for professionals and skilled workers advanced from 01/01/05 to 03/01/05 in respect of China; from 08/22/02 to 09/01/02 in respect of India; and from 03/15/06 to 04/08/06 in respect of all other countries.

In the EB-3 Other Workers category, the priority dates remained at 04/22/03 in respect of China, but advanced from 08/22/02 to 09/01/02 in respect of India; and from 03/15/06 to 04/08/06 in respect of all other countries.

Contact VisaPro immediately if you need any assistance in filing for an Adjustment of Status application or for an Immigrant Visa.

March 2012 Visa Bulletin: EB-2 Priority Dates for India and China reach 05/01/10

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In the recently published U.S. Department of State Visa Bulletin for March 2012, the EB-2 priority dates for India and China have moved to May 01, 2010 from January 01, 2010 in the February 2012 Visa Bulletin. Meanwhile, the EB-2 numbers for other countries remained current, along with EB-1, EB-4, and EB-5 numbers for all countries.

In the EB-3 category, the priority dates for professionals and skilled workers advanced from 12/01/04 to 01/01/05 in respect of China; from 08/15/02 to 08/22/02 in respect of India; and from 02/22/06 to 03/15/06 in respect of all other countries.

In the EB-3 Other Workers category, the priority dates remained at 04/22/03 in respect of China, but advanced from 08/15/02 to 08/22/02 in respect of India; and from 02/22/06 to 03/15/06 in respect of all other countries.

Contact VisaPro immediately if you need any assistance in filing for an Adjustment of Status application or for an Immigrant Visa.

February 2012 Visa Bulletin: EB-2 Priority Dates for India and China reach 01/01/10

In the recently published U.S. Department of State Visa Bulletin for February 2012, the EB-2 priority dates for India and China have moved significantly to January 01, 2010 from January 01, 2009 in the January 2012 Visa Bulletin. Meanwhile, the EB-2 numbers for other countries remained current, along with EB-1, EB-4, and EB-5 numbers for all countries.

In the EB-3 category, the priority dates for professionals and skilled workers advanced from 10/15/04 to 12/01/04 in respect of China; from 08/08/02 to 08/15/02 in respect of India; and from 02/01/06 to 02/22/06 in respect of all other countries. In the EB-3 Other Workers category, the priority dates remained at 04/22/03 in respect of China, but advanced from 08/01/02 to 08/15/02 in respect of India; and from 02/01/06 to 02/22/06 in respect of all other countries.

Contact VisaPro immediately if you need any assistance in filing for an Adjustment of Status application or for an Immigrant Visa.

January 2012 Visa Bulletin: EB-2 Priority Dates for India and China reach 01/01/09

In the recently published U.S. Department of State Visa Bulletin for January 2012, the EB-2 priority dates for India and China have moved significantly to January 01, 2009 from March 15, 2008 in the December 2011 Visa Bulletin. Meanwhile, the EB-2 numbers for other countries remained current, along with EB-1, EB-4, and EB-5 numbers for all countries.

In the EB-3 category, the priority dates for professionals and skilled workers advanced from 09/08/04 to 10/15/04 in respect of China; from 08/01/02 to 08/08/02 in respect of India; and from 01/15/06 to 02/01/06 in respect of all other countries. In the EB-3 Other Workers category, the priority dates remained at 04/22/03 in respect of China, but advanced from 07/22/02 to 08/01/02 in respect of India; and from 01/01/06 to 02/01/06 in respect of all other countries.

Contact VisaPro immediately if you need any assistance in filing for an Adjustment of Status application or for an Immigrant Visa.

Bill that could reduce waiting period of Indians and Chinese for EB Green Cards passed

The U.S. House of Representatives has passed the ‘Fairness for High-Skilled Workers Act’ that proposes, among other provisions, a provision to end per-country quota for employment based Green Cards. The bill proposes to eliminate the current provisions under which citizens of a country can be issued no more than 7% of total employment-based Green Cards available annually, and replace it with provisions that would take effect in 3 years, and provide for issuance of employment based Green Cards on first come first served basis.

Under the current system, because of the per-country quota limitation, citizens of China and India (along with citizens of Mexico and Philippines in certain EB quota categories) often wait for longer periods than citizens of other countries, to be granted an employment based Green Card. If this per-country quota system is eliminated, that would result in lesser waiting periods for citizens of China and India. And, as there is no proposal to increase the number of Green Cards offered annually, this would result in retrogression for other countries.

On the family based Green Cards front, the bill proposes to increase country-specific quotas from 7% to 15%. This would primarily result in reduction in waiting period for Philippines and Mexican native relatives of U.S. Citizens.

The bill will now be taken up before the Senate and will become law if approved by the Senate, and later signed by the President.

December Visa Bulletin: EB-2 Priority Dates advance significantly for India and China

In the recently published U.S. Department of State Visa Bulletin for December 2011, the EB-2 priority dates for India and China have moved significantly to March 15, 2008, from November 1, 2007 in the November 2011 Visa Bulletin. Meanwhile, the EB-2 numbers for other countries remained current, along with EB-1, EB-4, and EB-5 numbers for all countries.

In the EB-3 category, the priority dates for professionals and skilled workers advanced from 08/22/04 to 09/08/04 in respect of China; 07/22/02 to 08/01/02 in respect of India; and from 12/22/05 to 01/15/06 in respect of all other countries. In the EB-3 Other Workers category, the priority dates remained at 04/22/03 in respect of China, but advanced from 06/15/02 to 07/22/02 in respect of India; and from 11/15/05 to 01/01/06 in respect of all other countries.

Contact VisaPro immediately if you need any assistance in filing for an Adjustment of Status application or for an Immigrant Visa.

November Visa Bulletin: EB-2 Priority Dates advance for India and China

In the recently published U.S. Department of State Visa Bulletin for November 2011, the EB-2 priority dates for India and China have moved to November 1, 2007, from 15 July, 2007 in the October 2011 Visa Bulletin - the most significant progression in EB-2 numbers for India and China since August, 2007. Meanwhile, the EB-2 numbers for other countries remained current, along with EB-1, EB-4, and EB-5 numbers for all countries.

In the EB-3 category, the priority dates for professionals and skilled workers advanced from 08/08/04 to 08/22/04 in respect of China; 07/15/02 to 07/22/02 in respect of India; and from 12/08/05 to 12/22/05 in respect of all other countries. In the EB-3 Other Workers category, the priority dates remained at 04/22/03 in respect of China, but advanced from 06/08/02 to 06/15/02 in respect of India; and from 09/15/05 to 11/15/05 in respect of all other countries.

Contact VisaPro immediately if you need any assistance in filing for an Adjustment of Status application or for an Immigrant Visa.

EB-5 Program: USCIS Announces Direct Email Communication with Form I-924 Applicants

USCIS began implementing the first phase in a series of proposed enhancements to the EB-5 program (Immigrant Investor Program), by announcing that Form I-924 (Application for Regional Center Under the Immigrant Investor Pilot Program) applicants will now be able to communicate directly with USCIS adjudicators through e-mail, to resolve issues and questions that arise during the adjudication process.

USCIS has announced that the direct email communication process is only available to entities that have a pending Form I-924 application and it is not available to regional center promoters who have pending regional center applications that were filed prior to the implementation of Form I-924 on Nov. 23, 2010.

Under the new direct email communication process of USCIS:

Form I-924 applicants may email USCIS questions regarding pending applications, including questions related to Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs) issued by USCIS;
USCIS may email Form I-924 applicants to informally ask for clarification on certain issues to facilitate review, understanding and adjudication of the application;
USCIS may send a courtesy copy of an RFE or NOID to the email address listed on the I-924 and, if applicable, to the email address listed on the Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, associated with the application.

USCIS has also issued a Q&A on Direct Email Communication with EB-5 Regional Center Applicants, a few relevant extracts from which are as below:

How will the direct email communication process work?

Form I-924 applicants with pending applications will be sent an email with a unique identifier and a specific email address to use when corresponding with USCIS. Once assigned an email address, applicants may use this contact information to send and respond to emails to discuss—either informally or through the RFE or NOID process—issues raised in their regional center applications. An applicant will receive an email with instructions shortly after his or her Form I-924 application is accepted by USCIS for filing.

Will USCIS use email to issue RFEs and NOIDs, and can Form I-924 applicants use email to provide evidence in response to such notices?

If an RFE or a NOID is issued in regard to a Form I-924 application, USCIS will follow standard procedures and will mail a hard copy of the RFE or NOID to the address listed on the Form I-924 or, if applicable, to the attorney or accredited representative listed on a valid Form G-28.

USCIS may email a courtesy copy of an RFE or NOID to Form I-924 applicants and, if applicable, to attorneys or representatives of record listed on the Form G-28 associated with the application. However, applicants may not formally respond to an RFE or a NOID via email. USCIS cannot accept an applicant’s formal response to a RFE or NOID via email. Once an applicant is ready to submit the formal response to an RFE or NOID to USCIS, he or she should follow the response submission instructions provided on the RFE or NOID.

Can the direct email communication process be used to discuss issues regarding individual Form I-526 and Form I-829 petitions or other EB-5 issues not directly related to a pending Form I-924 application?

No. The direct email communication process is solely for discussing issues regarding pending I-924 applications. It is not a forum for general policy and legal questions about adjudicative procedures or decisions, or for questions relating to Form I-526, Immigrant Petition by Alien Entrepreneur; Form I-829, Petition by Entrepreneur to Remove Conditions; or Form I-290B, Appeals or Motions. USCIS will not respond to emails received concerning issues unrelated to a currently pending I-924 application.

What if an applicant has questions about his or her Form I-924 after it has been adjudicated?

Applicants may contact USCIS with other questions regarding the EB-5 Program at uscis.immigrantinvestorprogram@dhs.gov.

USCIS Issues Q&As Regarding Entrepreneurs and EB-2 Green Card Category

Under the recently announced USCIS' initiatives to promote startup enterprises and spur job creation, entrepreneurs may obtain an EB-2 Green Card as a member of a profession holding an Advanced Degree or as an individual of Exceptional Ability in the sciences, arts, or business, if they satisfy the existing requirements. USCIS has issued Frequently Asked Questions to clarify this issue. A few relevant extracts from the USCIS Q&As regarding entrepreneurs and EB-2 Category are as below:

Can an entrepreneur qualify as a member of a profession holding an advanced degree?

Yes. An entrepreneur can qualify if the:
- Entrepreneur will be working for a U.S. employer who files a petition on the entrepreneur’s behalf
- Entrepreneur is a member of the profession holding an advanced degree or foreign equivalent degree
- Underlying position requires, at a minimum, a professional holding an advanced degree or the equivalent
- Petitioning employer has received an individual labor certification from the Department of Labor; and
- Entrepreneur meets all the specific job requirements listed on the individual labor certification

Can an entrepreneur qualify as an individual of exceptional ability in the sciences, arts, or business?

Yes. An entrepreneur can qualify if the:

Entrepreneur will be working for a U.S. employer who files a petition on the entrepreneur’s behalf
Entrepreneur will be working in the sciences, arts, or business
Entrepreneur has exceptional ability in the sciences, arts, or business
Entrepreneur will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States
Petitioning employer has received an individual labor certification from the Department of Labor; and
Entrepreneur meets all the specific job requirements listed on the individual labor certification.

How can an entrepreneur establish that he or she has exceptional ability in the sciences, arts, or business?

First, the entrepreneur would need to establish that they meet at least three of the following criteria:

An official academic record showing that the beneficiary has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability
Evidence in the form of letter(s) from current or former employer(s) showing that the beneficiary has at least ten years of full-time experience in the occupation for which he or she is being sought
A license to practice the profession or certification for a particular profession or occupation
Evidence that the beneficiary has commanded a salary, or other remuneration for services, which demonstrates exceptional ability
Evidence of membership in professional associations; or
Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations

It should be noted that, as set forth in subparagraph (A) above, the regulation requires that the alien (in this case, the entrepreneur) have a degree "relating to" the area of exceptional ability. This means that the entrepreneur’s degree need not be in the same field of claimed exceptional ability, but only that it be related to that field. For example, an entrepreneur seeking to start an internet-related business and who claims exceptional ability in that field might qualify with a degree in computer science, network technology, or certain areas of business.

Second, the entrepreneur must demonstrate that he or she has a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.

If an entrepreneur is unable to provide documentary evidence that he or she meets at least three of the six regulatory criteria for exceptional ability, can he or she submit other evidence to demonstrate exceptional ability in the sciences, arts or business?

Yes. Comparable evidence is to be accorded the same weight as evidence submitted in support of the criteria listed above. Irrespective of the type of evidence presented, the entrepreneur has the burden of proving, by a preponderance of the evidence (i.e. more likely than not), his or her eligibility for the EB-2 visa classification. USCIS will take into account the totality of the circumstances when reviewing the evidence provided.

When comparable evidence is presented, the entrepreneur must explain how and why the regulatory criterion for which comparable evidence is being submitted does not readily apply to his or her occupation.

There is no limitation on the type of comparable evidence the entrepreneur may present; instead, the focus is on the quality of the evidence presented and how it compares to the regulatory criterion for which it is being substituted. For example, the entrepreneur might demonstrate such past achievements as his or her successful history in obtaining venture capital funding from reputable sources, or his or her past participation in incubators (entities that provide resources, support, and assistance to entrepreneurs to foster the development and growth of an idea or enterprise) that have high evaluative standards for participation.

How does an entrepreneur show that he or she will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States?

Entrepreneurs should discuss which element(s) (national economy, cultural or educational interest, or welfare of the United States) the entrepreneurial enterprise is claimed to benefit. For example, the educational interests of the United States may be met by an entrepreneurial enterprise that establishes tutoring instruction learning centers throughout the United States.

As another example, the entrepreneur could demonstrate that at least one aspect of the welfare of the United States will be "substantially" better off were the entrepreneurial enterprise to be located in the United States. It should be noted that the term "welfare" as used by the statute is a broad concept and could refer to any number of areas.

USCIS Issues Q&As Regarding Entrepreneurs and EB-2 NIW Category

Under the recently announced USCIS’ initiatives to promote startup enterprises and spur job creation, entrepreneurs may obtain an EB-2 Green Card if they satisfy the existing requirements. They may also qualify for a National Interest Waiver (NIW) under the EB-2 Green Card category if they can demonstrate that their business endeavors will be in the interest of the United States. USCIS has issued Frequently Asked Questions to clarify this issue. A few relevant extracts from the USCIS Q&As regarding entrepreneurs and EB-2 NIW Category are as below:

Is there a “national interest waiver” (NIW)? And if so, what is it? Can an entrepreneur qualify for a NIW?

Yes. A NIW exempts the petitioner from the normal requirement of a job offer, and thus from obtaining a labor certification from the U.S. Department of Labor. Entrepreneurs, if they qualify, can obtain a waiver of the job offer requirement if it is in the national interest.

If an entrepreneur wants to file for a NIW, does he or she still have to be a member of the profession holding an advanced degree or an individual of exceptional ability?

Yes. The entrepreneur must first demonstrate that he or she is either a member of the profession holding an advanced degree or an individual of exceptional ability.

If an entrepreneur wants to file for a NIW must he or she have an actual employer in the United States?

No. An entrepreneur does not need to have an actual job offer from a U.S. employer if he or she qualifies for a NIW. In other words, an entrepreneur may be able to petition for him or herself and fill the role of both the petitioner and beneficiary. The law provides that the Secretary of the Department of Homeland Security may, if he or she deems it to be in the national interest, waive the requirements that an individual’s services in the sciences, arts, professions, or business be sought by an employer in the United States.

Is there a definition of “national interest”?

The term “national interest” is not defined in the statute or the regulations, and Congress did not specifically define the phrase in the relevant legislative history. However, USCIS issued a precedent decision concerning NIWs, Matter of New York State Dept. of Transportation (NYSDOT).

While NYSDOT does not involve an entrepreneur, the decision contemplates that entrepreneurial or self-employed beneficiaries may qualify for the NIW under limited circumstances. Footnote 5 in the decision states:
NYSDOT lays out a three pronged test for NIW applicants to qualify for a waiver of the job offer requirement.

What are the three prongs laid out in the NYSDOT decision?

1. The waiver applicant must seek employment in an area that has substantial intrinsic merit.
2. The waiver applicant must demonstrate that the proposed benefit to be provided will be national in scope.
3. The waiver applicant must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the waiver applicant by making available to U.S. workers the position sought by the waiver applicant.
Stated another way, the petitioner, whether the U.S. employer or the NIW applicant, must establish that the entrepreneur will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

How does the first prong of NYSDOT relate to entrepreneurs?

Under the first prong of the NYSDOT test, the entrepreneur must seek employment in an area that has substantial intrinsic merit. It is important for the entrepreneur to focus on the proposed employment rather than the entrepreneur’s qualifications. In NYSDOT, the beneficiary was a structural engineer working on highway bridges. This activity was found to have substantial intrinsic merit.

How does the second prong of NYSDOT relate to entrepreneurs?

The second prong of the NYSDOT test requires that the entrepreneur demonstrate that the proposed benefit to be provided will be national in scope. For example, the entrepreneur might be able to demonstrate that the jobs his or her business enterprise will create in a discrete locality will also create (or “spin off”) related jobs in other parts of the nation. Or, as another example, the entrepreneur might be able to establish that the jobs created locally will have a positive national impact. As described below, and as the law contemplates, USCIS will give due consideration to entrepreneurs who establish that their entrepreneurial enterprise will serve the national interest to a substantially greater degree than the work of others in the same field.

How does the third prong of NYSDOT relate to entrepreneurs?

NYSDOT’s third prong is best understood in light of the labor certification process and the assumed benefit that it provides to the United States. An individual seeking an exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process. NYSDOT’s third prong requires that the entrepreneur “present a significant benefit to the field of endeavor.” The field should be the same as that identified in prong one of the analysis and the entrepreneur must document how the entrepreneurial enterprise will benefit that field. NYSDOT states:
The entrepreneur who demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for an NIW. For example, the entrepreneur may not be taking a job opportunity from a U.S. worker but instead may be creating new job opportunities for U.S. workers. The creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.

USCIS Memo on establishment of IRCU for EB5 matters

The USCIS has released an inter-office memorandum on the formation of Investor and Regional Center Unit. Effective the date of this memo, oversight for policy and regulation development, field guidance, form design, case auditing, and training regarding Regional Center adjudications and associated investor petitions within the EB-5 Investor Program, shall reside with PRD/Investor and Regional Center Unit (IRCU). Given the well documented past abuses in the alien investor program, and the complexity and sensitivity of the issues and factors relating to both Regional Centers as well as with individual alien investor cases, there is a need for effective oversight, coordination and uniform standards governing all aspects of EB-5 matters.

PRD/IRCU will maintain liaison and regularly consult with Headquarters Service Center Operations (SCOPS), Field Operations (OFO), Administrative Appeals Office (AAO), as well as with the Texas and California Service Centers with respect to the Immigrant Investor Pilot Program, Regional Centers, I-526 and I-829 alien investor petitions. In addition, PRD/IRCU will work directly with both SCOPS and the Office of Fraud Detection and National Security (FDNS) to enhance the integrity of the EB-5 program.

This action is a major step in CIS' establishment of a nationwide and coordinated adjudicative alien investor EB-5 program, which will strengthen and protect the integrity of the program while promoting the intent of Congress to encourage investment and increase employment within the United States. The IRCU's functions and responsibilities are as follows:

Sole adjudicative jurisdiction for Regional Center applications pursuant to the Immigrant Investor Pilot Program for purposes of approval, denial and Requests for Evidence (RFE's).
Monitor and follow up on the actions of approved Regional Centers to ensure compliance with the terms, scope, and conditions of their approval/designation relative to their approved business plans and indirect job creation methodologies.
Develop and propose EB-5 program, policy, and regulation changes/improvements to USCIS management.
Monitor and be responsible for the policy coordination relating to CIS wide I-526 and related I-829 Immigrant Investor cases.
In coordination with SCOPS, conduct quarterly evaluations and an annual analysis of Regional Center activities in terms of number of alien investors, aggregate investment capital, average value of investments per alien investor, aggregate total of direct and indirect jobs per each regional center, and review total number of alien investors petitioning through each regional center per year.
Coordinate with the SCOPS and FDNS, to develop program and process integrity improvements and assessments for purposes of strengthening fraud detection and preventing abuses of the program by mala fide promoters and investors.
In coordination with SCOPS, develop and update Executive Level Review Criteria (ELRC) for purposes of identifying and selecting I-526 and I-829 Regional Center affiliated cases to review and/or adjudicate for both audit and "special handling" to verify consistent application of applicable regulations and policies, and to provide oversight, guidance and provide priority adjudication of sensitive high visibility cases.
In coordination with SCOPS conduct random and focused audits and quality assurance reviews of individual and groups of both Regional Center affiliated I-526 and I-829 cases, and non-Regional Center affiliated cases, in accordance with ELRC procedures.
In coordination with SCOPS, conduct both Regional Center and EB-5 regulatory/policy training for CAO's and DAO's adjudicating individual EB-5 alien petitions as well as petitions affiliated with a regional center.
Maintains and updates the USCIS web content on the EB-5 program and Pilot Program information.

To learn more about the mission and organizational structure for PRD/IRCU, click here

DOL publishes final PERM Regulation

The U.S. Department of Labor has published a new regulation for the department's Permanent Foreign Labor Certification (PERM) program. The PERM program helps meet workforce needs when there are no available American workers to fill an available job. The Department of Labor is able to process requests to fill vacancies with foreign workers only after employers affirm to the department that no American workers are available.

“The regulation creates a fair and efficient system for reviewing applications to certify foreign workers while maintaining safeguards for American workers,” said Assistant Secretary of Labor for Employment and Training Emily Stover DeRocco.

The department's Employment and Training Administration (ETA) will open two new national processing centers in Chicago and Atlanta to review applications. The new program will accept the electronic filing of applications, thereby significantly reducing paperwork and allowing for prompt approval or rejection of requests for labor certification. Electronic filing also will enable the department to conduct automated screening of applications and identify applications for audits.

Once a permanent labor certification is issued by the department, an employer must then petition the U.S. Department of Homeland Security and the State Department to complete the visa approval process.

Under the previous program, a backlog of more than 300,000 applications for labor certification had built up. To address this backlog, the department recently announced the establishment of two temporary Backlog Elimination Centers to expedite processing of these applications. The centers, located in Dallas and Philadelphia, coordinate with state workforce agencies and the Employment and Training Administration's Division of Foreign Labor Certification to address the backlog.

For a complete version of the Permanent Labor Certification final rule click here.

USCIS announces public meeting on Regional Centers and EB5 Investor Program

All persons interested in attending a public informational meeting on the Immigrant Investor Pilot Program and Regional Centers are invited.

DATE: September 17, 2004
TIME: 10:00 am to 4:00 pm (Eastern Standard Time)
LOCATION: Holiday Inn
415 New Jersey Avenue NW
Washington, D.C.

Please email your RSVP to confirm your attendance by no later than August 30, 2004, to hqoprd@dhs.gov, and provide the following information (required):

Name of person attending,
Affiliation (if any),
Mailing address,
Phone number,
Email address.
Copy of the Meeting Agenda

BACKGROUND: The Immigrant Investor Pilot Program (“Pilot Program”) was created by Section 610 of Public Law 102-395 (October 6, 1992). This is different in certain ways from the basic EB-5 Investor Program.

The Pilot Program began in accordance with a Congressional mandate aimed at stimulating economic activity and creating jobs for U.S. workers, while simultaneously affording eligible aliens the opportunity to become lawful permanent residents. Through this innovative program, foreign investors are encouraged to invest funds in an economic unit known as a “Regional Center.”

A Regional Center is defined as any economic unit, public or private, engaged in the promotion of economic growth, improved regional productivity, job creation and increased domestic capital investment. Prior law required investment in a Regional Center to generate an increase in export sales. However, statutory amendments in 2000 and 2002, no longer require an increase in export sales for approval of a Regional Center, although the statutory amendments still encourage this aspect of the Pilot Program.

Presently up to 3000 immigrant visas are set aside each year for the Pilot Program. Although the Pilot Program temporarily sunset on September 30, 2003, it was reinstated and extended for five years by Congress via a law enacted in November 2003, with a new sunset date of November 2008. As of June 1, 2004, a total of 26 Regional Centers have been designated by the legacy Immigration and Naturalization Service (INS) and today, the U.S. Citizenship and Immigrations Services (USCIS).

Basic requirements for Regional Center designation: Applicants must show how their proposed program will:

Focus on a geographic region;
Promote economic growth through increased export sales, if applicable;
Promote improved regional productivity;
Create a minimum of 10 direct or indirect jobs per investor;
Increase domestic capital investment;
Be promoted and publicized to prospective investors;
Have a positive impact on the regional or national economy through increased household earnings; and
Generate a greater demand for business services, utilities maintenance and repair, and construction jobs both in and around the center.

How The Pilot Program And Regional Centers Fall Within The EB-5 Investor Requirements

The requirements for an investor under the Pilot Program are essentially the same as in the basic EB-5 investor program except that the Pilot Program allows for a less restrictive requirement for “indirect” job creation rather than “direct” job creation. The capital investment requirement for any EB-5 investor, inside or outside of a Regional Center is $1 million. The capital investment requirement for an EB-5 investor in a Targeted Employment Area (TEA) or a Rural Area (RA) is $500,000.

Indirect Job Creation: An important advantage to obtaining Regional Center designation is the “indirect” nature of the job creation, which is less difficult to achieve than the “direct” creation of 10 new jobs. The requirement of creating at least 10 new full-time jobs may be satisfied by showing that, as a result of the investment and the activities of the new enterprise, at least 10 jobs will be created indirectly through an employment creation multiplier effect. To show that 10 or more jobs are actually created indirectly by the business, reasonable methodologies may be used, such as multiplier tables, feasibility studies, analyses of foreign and domestic markets for the goods or services to be exported, and other economically or statistically valid forecasting tools which support the likelihood that the business will result in increased employment.

Targeted Employment Area (TEA): A TEA is a geographic area or political subdivision located within a metropolitan statistical area or within a city or town with a population in excess of 20,000 with an unemployment level at least 150% of the national unemployment rate. TEAs within a state are identified and designated by the governor (and for a TEA within the District of Columbia, designation is made by the Mayor). Typically a Regional Center seeks to encompass one or more TEAs. One example of a TEA is a Regional Center, which encompasses a large city which contains clearly delineated census tracts that have been designated as a TEA by the State based on the measured unemployment rates for the population residing within those locations.

Rural Area: A RA is a geographical area that is outside a metropolitan statistical area, or part of the outer boundary of any city or town having a population of 20,000 or less as shown by population indicators. In certain areas involving a sparsely populated state, an approved statewide Regional Center likely encompasses both TEAs and RAs.

Required Amount of Investment: Depending on the location of the commercial enterprise to be invested in, the required amount of the investment may be either $1 million or $500,000. If the investment is located within a TEA or RA, the required minimum threshold for investment is $500,000. Otherwise, an alien must invest a minimum of $1 million to qualify.

Required Commercial Enterprise: In order to qualify under the Pilot Program, an investment of the requisite amount ($500K or $1 million) must be made in a new commercial enterprise located within an approved Regional Center.

New Commercial Enterprise: The law and regulations require that the commercial enterprise in which the investment is made must:

Have been created/established after November 29, 1990; or
If the investment is made in a pre-1990 enterprise, the alien’s investment must have created a 40% or more increase in either the enterprise’s net worth or number of employees; or
The pre-1990 enterprise has been restructured or reorganized so that the result is a new commercial enterprise.

Although the 2002 EB-5 amendments eliminated the requirement that the alien “establish” the new commercial enterprise, the law retained the requirement that the enterprise into which the alien has invested be “new.”

Risk: The regulations and precedent decisions require an alien to incur a reasonable risk for purposes of generating a return on his or her capital investment. As such there should be no guarantees, buy back arrangements, unsecured promissory notes, other agreements or arrangements that in effect merely structure or organize the investment for appearance sake only for purposes of obtaining the permanent resident status without the alien’s capital being fully invested and at risk in the investment in the new commercial enterprise to create or spawn the required 10 jobs.

Engagement of the Alien Investor in the Enterprise: The regulations require that the alien investor is or will be engaged in the management of the new commercial enterprise, either through day-to-day managerial control or through participation in policy-making decisions for the commercial enterprise.

Application for Regional Center designation: There is no established application form by which to apply. The process provides that any entity, government or private organization which desires Regional Center designation by the USCIS proceed as follows:

Prepare a written narrative proposing a for-profit investment which addresses each of the requirements for Regional Center designation participating in the pilot program, with supporting evidence as prescribed in the regulations at 8 CFR 204.6(m).
Submission of the written proposal to the USCIS Associate Director for Operations.

At present there is no fee required to apply for Regional Center designation. The USCIS will then review and adjudicate the proposal and may request additional clarifying information and evidence to support representations made in the proposal. If the proposal is initially determined to fully meet each of the requirements for Regional Center designation, then such designation is issued through a letter to the applicant signed by the USCIS’ Associate Director for Operations. If the proposal is initially determined to not meet all the requirements for such designation, then a request for additional evidence may be made. Based on the proposal and the supporting evidence for the proposal, a final determination to approve or deny the regional center request will be made by USCIS.

Important: The above information on Regional Center designation is provided as general information only. It is not intended to be, and may not be relied upon, to create any right or benefit, substantive or procedural, enforceable at law by any individual or other party in removal proceedings, in litigation with the United, States, or in any other form or manner. Nothing herein restricts or limits USCIS’ ability to administer, review, develop, or in any way change the Regional Center designation program.