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  • Article: EB-5 Update-Understanding the October 2015 Visa Bulletin Changes — When to File Investor-Based I-485 Adjustments? By Bernard P. Wolfsdorf, Esq.

    EB-5 Update-Understanding the October 2015 Visa Bulletin Changes — When to File Investor-Based I-485 Adjustments?

    by


    THIS BLOG DOES NOT CONSTITUTE LEGAL ADVICE. TO OBTAIN LEGAL ADVICE CONSULT WITH A LICENSED AND KNOWLEDGEABLE IMMIGRATION LAWYER.

    *Copyright © 2015  Wolfsdorf Rosenthal LLP

    1. To understand the Visa Bulletin, one needs to learn the terminology
      • Visa Bulletin (VB) ? PUBLISHED MONTHLY
      • New Visa Bulletin (NVB) ? OCTOBER 2015
      • Priority date (PD) ? DATE I-526 RECEIVED
      • Cut-Off Date (COD) ? OLD VISA BULLETIN
      • Final Action Date (FAD) ? FORMERLY COD
      • Date Filing Application (DFF) ? NEW FOR FILING ADJUSTMENT – [FORMERLY ONLY NVC FEE BILL ISSUANCE DATE]

    2. Why the changes?

      On November 20, 2014, DHS directed USCIS to work with the Department of State (DOS) to improve the Visa Bulletin system. On July 16, 2015, the Obama Administration issued a report Modernizing and Streamlining Our Legal Immigration System for the 21st Century. As a result, USCIS/DOS revised the procedures for determining visa availability for applicants waiting to file for adjustment of status.  This change enhances the ability to more accurately predict overall immigrant visa demand and minimize month-to-month fluctuations.


    3. What is a Priority Date (PD) and What is its Significance?

      An EB-5 Priority date (PD) is the date USCIS receives the I-526 EB-5 petition. The Visa Bulletin (VB) is updated on the 9th or 10th of each month, or as needed, with the new Cut-Off Dates (COD). See http://travel.state.gov/content/visas/english/law-and-policy/bulletin.html. A PD must be “Current,” to schedule a final interview at a Consulate/Embassy abroad or to approve an application for adjustment of status. Previously, the PD had to be “Current” to file an I-485 adjustment. However, we now have published qualifying dates. In the case of Chinese born applicants, the published qualifying date is May 1, 2015. This date is new and is the Date for Filing Application (DFF) for October 2015. If the PD is earlier than Date Filing Application (DFF) e.g. April 30, 2015, a foreign national may be eligible to file an I-485 application.


    4. The New Visa Bulletin (NVB) has Two Charts, One for Filing and One for Approval
      • Date for Filing Application (DFF)
        ? I-485 adjustment of status may be filed
        ? Applicants also notified to submit documentation to National Visa Center (NVC) and pay fee bill.
      • Final Action Date(FAD) 
        ? I-485 adjustment of status may be approved
        ? Final consular application may be approved

      The DFF chart is used to determine whether there are visas available and whether additional I-485 applications may be filed. Otherwise, the FAD chart must be used. The USCIS, in coordination with DOS, will monitor visa numbers each month and post the relevant chart on its website, http://www.uscis.gov/visabulletininfo.

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    5. What is New?

      Before October 2015, one could only file an I-485 application if the Priority Date (PD) was earlier than the Cut-Off Date (COD). After October 1, 2015, one can file an I-485 application if the I-526 Priority Date (PD) is earlier than the Date for Filing Application (DFF). For China born applicants, the DFF date is May 1, 2015 for those who made either Direct or Regional Center investments. All non-China born applicants with I-526 approvals can file I-485 applications after October 1, 2015, whether they made Direct or Regional Center investments. However, those who invested in Regional Centers may file I-485 applications only if Congress extends the Regional Center program next week.


    6. The Impact of the New Visa Bulletin on EB-5

      On or about the 9th of every month, the New Visa Bulletin (NVB) will indicate both a Date for Filing Visa Application (DFF) (see Chart A), and an Application for Final Action Date (FAD) (see Chart B).

      Once the PD is current (i.e., earlier than date listed in FAD chart B), the EB-5 visa can be issued abroad, or an application for adjustment of status can be approved. USCIS has stated the DFF Chart A may be used in October 2015 for filing adjustment of status applications. See www.USCIS.gov/visabulletininfo. The “approval” or FAD cut-off dates may change monthly subject to demand as before. The “acceptance” or DFF cut-off dates will generally remain the same, or may move forward slightly throughout the year.


    7. The October Visa Bulletin Simplified for EB-5
      • DIRECT – (C5 and T5)
        DFF — CHINA CHARGEABLE ?01MAY15
        DFF — NON CHINA BORN ? CURRENT
        FAD — CHINA ? 08OCT13
        FAD — NON CHINA BORN ? CURRENT
      • REGIONAL CENTER – (I5 and R5)
        FAD — CHINA RC ? UNAUTHORIZED (AFTER CONGRESS EXTENDS — 08OCT13)
        FAD — NON CHINA BORN ? UNAUTHORIZED (AFTER CONGRESS EXTENDS — CURRENT)

      Cut-off dates for Regional Center are “unauthorized”; however legislative action extending the program will make the cut-off dates “current” for October for all non-Chinese born. China born RC applicants will be subject to an October 8, 2013 cut-off date when Congress extends the program.Visas based on Regional Center investments may only be issued until close of business on September 30, 2015, but such visas may be issued for the full validity period of 6 months, or until the medical examination expires, whichever occurs first. After September 30, 2015, no visas based on Regional Center investments may be issued until the Regional Center program is reauthorized by Congress.


    8. The Advantages of Filing for Adjustment of Status in the U.S.

      Principal applicants and eligible derivative family members including spouses and children can obtain employment authorization and advance parole travel authorization about 90 days after filing I-485 applications. These are renewable annually until permanent residence is approved. Most important, the Child Status Protection Act (CSPA) provides lock-in ability and freezes the derivative child’s age. Since the Chinese EB-5 quota waiting line mainly impacts derivative children who turn 21 after the I-526 petition is approved, the ability to freeze the child’s age by filing an I-485, provides the best option for child age-out protection.


    9. Three Requirements to File Adjustment Applications Based on an Approved I-526

      A visa number must be “available” as listed on the Visa Bulletin, and the applicant must have continuously maintained lawful nonimmigrant status. Since EB-5 adjustments only have section 245(i) relief that requires them to have filed for a green card prior to April 30, 2001. Even persons with F-1 reinstatement are barred as they have to admit being out of status and there is no section 245(k) option for EB-5 applicants that allows past violations of status to be forgiven. Finally, the applicant must not have engaged in unauthorized employment.

      • A visa number must be “available” as listed on the Visa Bulletin
      • The applicant must have continuously maintained lawful nonimmigrant status since EB-5 adjustments only have section 245(i) relief that requires them to have filed for a green card prior to April 30, 2001. Even persons with F-1 reinstatement are barred as they have to admit being out of status and there is no section 245(k) option for EB-5 applicants that allows past violations of status to be forgiven.
      • The applicant must not have engaged in unauthorized employment.

    10. EB-5 Adjustment Planning and the Interplay with B Visitor and F Student Visas

      The China Visa Reciprocity Schedule was adjusted last year to allow issuance of 10 year visas for visitors and 5 year visas for students.  On July 16, 2015 President Obama published the Administration’s Visa Modernization proposals that clarify whether investors can obtain visitor visas to inspect their investment. They also seek to clarify student visa intent is evaluated at time of application.


    11. About 90%, of EB-5 Visa Applicants Consular Process Abroad (7,772 out of 8,641).
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    12. Can I Enter the U.S.? Now to File an Adjustment?

      Since about 90% of EB-5 applicants’ consular process abroad, the question is whether to enter the US now to file an adjustment application. Clearly persons with “dual intent” visas – H-1B specialty occupation or L-1 company transfer – can enter and immediately file adjustment applications if they have an approved I-526 and the DFF has been reached.If someone entered on B-2 visa before the New Visa Bulletin was announced, and later discovered after entry he or she is eligible to file, it’s unlikely there will be any “preconceived intent” or visa fraud issues. The question arises as to whether an F-1 student must wait 30 or 60 days after entry to file an adjustment. It’s best to wait at least 30 days but the answer is not clear.


    13. Applying the 30/60 Day Rule 9 FAM 40.63 N4.7

      In determining whether a misrepresentation has been made, some of the most difficult questions arise from cases involving persons in the United States who conduct themselves in a manner inconsistent with representations they made to the consular officers concerning their intentions at the time of visa application or to immigration officers when applying for admission.  The rules indicate that, “Such cases occur most frequently with respect to aliens who, after having obtained visas as nonimmigrants [who] Apply for adjustment of status to permanent resident;”As a result the Department of State has developed the 30/60 day rule that states if one files for adjustment within 30 days of entry; the government can presume the person misrepresented his or her intention in seeking a visa or entry. A finding of misrepresentation or fraud can result in a drastic lifetime bar to entering the U.S.If the act occurs more than 30 days but less than 60 days after entry, no presumption of misrepresentation arises. However, if facts cause reasonable belief that intent was misrepresented, then the person must present countervailing evidence.If the act occurs more than 60 days after admission into the United States, there is generally no basis for a misrepresentation or inadmissibility finding.


    Conclusion

    With so many principal applicants abroad, very few derivative students in the U.S. can file adjustments. Even newly acquired spouses may not be able to join their spouses if there is visa retrogression. The big question is whether USCIS will allow EB-5 adjustment filings in November and December 2015, or whether this is a one-time benefit in October. USCIS should allow EB-5 applicants to file going forward because very few people will be able to file adjustments in October.  The other big question is whether USCIS will grant parole entry to persons with I-526 approvals so they can file adjustments in the U.S. So while this new initiative is a positive development for some, it is not yet clear how many EB-5 applicants will benefit.

    This post originally appeared on Wolfsdorf Immigration Law Group. Reprinted with permission.


    About The Author

    Tahmina Watson Bernard Wolfsdorf is a recent past President of AILA and Managing Partner of the top-rated Wolfsdorf Rosenthal LLP with offices in Los Angeles and New York. With 21 lawyers and 60 professionals, the firm is known worldwide for its excellence in providing value and top-quality global immigration representation. Wolfsdorf Rosenthal LLP has been described by Chambers USA as "a force to be reckoned with."


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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