When Immigration Matters

American companies can often benefit from bringing over foreign talent to fill out their workforce. When finding the right employee proves difficult, experienced and knowledgeable legal counsel can help you check all the legal boxes when sponsoring a foreign worker.

We are excited to share that our blog, "When Immigration Matters" has been selected by Feedspot as one of the Top 100 Immigration Blogs on the web. This is the most comprehensive list of on the internet and we are honored to be part of this!  We are thrilled that our thoughts and insights are valued and helping those seeking to immigrate to the United States.

Lawful permanent residence (or permanent residency), which is the legal status for green card holders, can allow non-residents and their family the freedom to travel the country, work, and send your kids to public schools. No longer will they have to worry about visa extensions and planning their lives around time periods of only a few years. 

Many employment-based visas allow a path for temporary visa holders to become lawful permanent residents by obtaining a green card. Even though H-2A and H-2B visas are temporary in nature, there are ways for these workers to obtain green cards. The H-2 visa evidences non-immigrant intent, and the green card evidences immigrant intent. If an H-2 worker evidences immigrant intent, it is unlikely their H-2 visa will be renewed. This process is quite nuanced and should be timed very carefully.   

One option for employers needing to bring over foreign talent to fill positions for specialty occupations is the H-1B visa. This nonimmigrant visa allows employees to legally reside and work in the U.S. for an initial period of three years, which may be renewed for an additional three years—possibly beyond these six years with an approved Form I-140 (Petition for Immigrant Worker) filed by an employer. 

On February 18, 2021, Senator Bob Menendez (D-NJ) and Representative Linda T. Sánchez (D-CA) unveiled President Biden’s pathway to citizenship for the eleven million undocumented immigrants currently living in the United States. Referred to as the U.S. Citizenship Act of 2021, Biden’s plan comprises of an eight-year process during which immigrants live and work in the U.S. After passing background checks and paying taxes, participants of the program are permitted a five-year stay in the United States. Then, upon completing this period, immigrants are able to apply for a green card, granting them permanent citizenship. Lastly, after three additional years, participants of this path have the opportunity to become full citizens.   

While there have been many efforts made to reach bipartisan support regarding immigration reform, Biden’s eight-year path to citizenship seems to only be backed by his Democratic supporters. His plan focuses on making it far easier to enter the U.S. legally by rehabilitating legal points of entry rather than funding border enforcement like his predecessor, which has not pleased Senate Republicans. In fact, after being introduced in February, the bill still remains stalled on the Senate floor, and it is becoming seemingly more unlikely that its status will progress. Hope dwindles as Biden is still short the ten additional votes needed to overcome the filibuster, despite support from all fifty Democrat-controlled seats.  

In the meantime, Senate Democrats and other major players in immigration policymaking recently met with President Biden to discuss the inclusion of immigration reform in his $3.5 trillion federal budget package. Policy change in this form is ideal, as budget bills only require a simple majority, thus enabling Democratic lawmakers to completely bypass Republican opposition. Biden readily reaffirmed his support for immigration reform, assuring the group of Senate Democrats that he would work with them in order to see their long-sought immigration policies signed into law.   

Additionally, the pressure on the Biden administration to achieve success regarding immigration policy reform has been further fueled by a recent Texas ruling that outlawed the Deferred Action for Childhood Arrivals (DACA) program, one of the few remnants of immigration policy from Biden’s vice presidency during the Obama era. However, with the inclusion of immigration policy in his Reconciliation federal budget package, Biden and many Democratic lawmakers are working to create a path to citizenship for Dreamers, undocumented essential workers, and those with Temporary Protected Status. Although Biden has yet to disclose the specific details of each pathway as they are spelled out in the budget package, it is his intention, that with full support from Congress Democrats, the 11 million undocumented immigrants will come out of the shadows, stop living in fear of deportation and separation from their families and be granted a path to full citizenship in the near future.   

We would like to thank our Summer Intern Hallie Sternblitz for doing the research and writing this Blog Post. 

A very short window has opened for potential EB-5 investors to invest at the $500,000 level once again after various events affecting the EB-5 industry occurred this past week; On Tuesday, a Federal Judge invalidated the Final EB-5 rules that increased the minimum investment amount from $500,000 to $900,000 in 2019, effectively reverting the investment threshold back to its previous level.  On Thursday, however, efforts to re-authorize the EB-5 program, which is currently set to expire on the 30^th of June 2021, stalled on the Senate floor and will only continue once Congress returns from its 4^th of July recess. This leaves potential investors with the opportunity to invest at the $500,000 level only until the 30^th of June.

U.S. Magistrate Judge Jacqueline Scott Corley gave hope to the EB-5 industry, which has been struggling under the twofold setback of increased investment amounts and investor uncertainty following the Covid-19 pandemic.  Her ruling concluded that the Department of Homeland Security officials who were responsible for enacting the initial price increase and various other changes to the program through the Modernization Rule of 2019 had not been legally appointed according to the Federal Vacancies Reform Act of 1998 and therefore had no legal authority to promulgate the changes.  Brought before the court by Behring Co., a real estate developer and the operator of Behring Regional Center, the judge’s decision effectively nullified the Modernization Rule enacted since November 2019.  In addition to the increasing the investment threshold, the Modernization Rule also made changes to the Regional Center Program’s Targeted Employment Area (TEA) designation process, which removed States’ ability to determine their own TEA eligibility and drastically decreased the number of investments projects that qualified to raise capital through the EB-5 program.

The victory was short-lived, however, after efforts to reauthorize the EB-5 program stalled in the Senate’s last session before breaking for recess until after the 4^th of July.  Senators Grassley, Leahy and Cornyn brought the bipartisan EB-5 Reform and Integrity Bill before the Senate floor to request unanimous consent to pass the bill before the June 30^thdeadline.  The motion was, however, unsuccessful after South Carolina Senator Lindsey Graham registered an objection to the unanimous consent motion.  A short- term extension was unfortunately not brought forward to re-authorize the program while effort to conclude any legislation action continues.  This leaves the regional center to sunset until Congress gets back to work following the 4^th of July holiday.

Industry experts believe that efforts to pass legislative reform and re-authorize the program will continue once Congress reconvenes.  However, any legislative action taken will likely re-establish the $900,000 threshold and any action taken by Congress will supersede the ruling of the Behring case.  Those who are considering making use of the small window of opportunity are encouraged to act before 30 June if they wish to partake in the program at the $500,000 level.  It is possible the Government will appeal the decision and the ruling stayed meaning people who do invest $500,000 may have to now invest an additional $400,000 or depending on the terms of the regional center agreement have their $500,000 returned to them.  It is important to review the specific regional center agreement to see what will happen to the $500,000 investment if the decision is appealed before June 30, 2021 and the investor has invested at the $500,000 level. 

The EB-5 program provides its investors with legal permanent residents for the applicant, their spouse and any children aged under twenty-one years of age.

The Biden Administration has announced that it is reviving the International Entrepreneur Program, which provides foreign-born entrepreneurs a temporary immigration pathway for up to five years.  Primarily aimed at start-ups, the program will be accessible to individuals who have founded new companies within the three years prior to applying and that has attracted at least $250 000 in capital from American Investors or at least $100 000 in grants from Federal, State or local government agencies. 

The program was first introduced by the Obama administration in 2017 but was blocked from being implemented by President Trump shortly after his inauguration.   In reviving the program, the Biden administration hopes to attract promising entrepreneurs to the USA since the program not only allows its beneficiaries to legally work for their start-up companies, but it also provides work authorization for accompanying spouses.

H-1B Season is upon us.  The good news is we expect USCIS to announce the the date the H1-B Registration period begins shortly.