USCIS

On February 21st, 2020, the U.S Supreme Court allowed the Trump administration’s public charge regulation to take effect in all 50 states. The U.S. Citizenship and Immigration Services (USCIS) started to abide by this rule as of February 24th, 2020. 

This regulation, which is now grounds for inadmissibility will be enforced for anyone who may use public benefits under certain circumstances. If USCIS determines that an intending immigrant may become a “public charge” under the definition of Department of Homeland Security, the intending immigrant may be unable to become a permanent resident or enter the United States due to the usage of certain benefits. Public charge laws do not apply to an applicant seeking to become a naturalized U.S. Citizen. 

USCIS considers the following factors to play a part in its decision as to whether someone is likely to become a public charge: 

• The applicants’ age, health, family status, assets/resources/financial status, and education/skills are the main factors that will be considered when making said decision; 

• Benefits that make an immigrant a legal charge are the following: Supplemental Security Income (SSI); Temporary Assistance to Needy Families (TANF); Federal, State, local, or tribal cash benefit programs for income maintenance; most forms of federally funded Medicaid; Supplemental Nutrition and Assistance Program (SNAP) formerly known as food stamps; Section 8 Housing Choice Voucher Program; Section 8 Project-Based Rental Assistance; and Public Housing. 

• This rule is to be applied to those who are more likely to receive or in some cases, have already received (after February 24th, 2020) any of the above mentioned nine benefits for more than 12 months within any 36-month period. It is important to note that if someone is to use two benefits in one month, it will be counted as 2 months of their 3-year timeline. These benefits are only considered if the applicant is the recipient beneficiary, and not the petitioning relative. 

In certain situations, the USCIS or State Department can allow applicants to post a bond in order to overlook the public charge regulation in relation to said applicants’ case. However this is determined on a case-by-case basis. 

Even though some officials are disappointed with this decision, the White House is pleased that this regulation has been put into effect. White House Press Secretary, Stephanie Grisham, has stated that “This final ruling will protect hardworking American taxpayers, safeguard welfare programs for truly needy Americans, reduce the Federal deficit, and re-establish the fundamental legal principle that newcomers to our society should be financially self-reliant and not dependent on United States taxpayers.” 

EB-5 Alert: Major Change to Processing of EB-5 Petitions

eb5-visa

On 1/29/2020 USCIS announced changing its processing protocol for EB-5 processing which translates to good news for some countries such as Pakistan, Ethiopia and Egypt. Currently the operational approach is on a “first-in, first out” basis, where the applications are reviewed based on when each petition is filed.

However, as of March 31, 2020, this approach will change to “visa availability” approach. This means that the agency will adjudicate based on visa-availability, thus prioritizing applications from countries with no retrogression issues. For example, USCIS will give priority to applications from countries such as Pakistan, Ethiopia and Egypt where there is not visa retrogression issues, and will hold off on adjudicating applicants from China, Vietnam or India where there are overwhelmingly more applicants, and where visas will not be available for several years.

Therefore priority will be given to petitions from countries where visas are immediately available, allowing said countries to better use their annual per-country allocation of EB-5 visas. What this means is that applicants from underrepresented countries can expect their petitions to be adjudicated faster than previously expected.

USCIS will hold a public engagement on March 13, 2020 to answer questions from the public, with the anticipated implementation of the new “visa availability” approach on March 30, 2020.

The new approach is in line with existing processing rules for I-130 (family basis categories) and more in line with congressional intent for the EB-5 Immigrant Investor Program, thus promoting fairness in the administration of the program.

Dr. Kasra Moderating NYC Bar Jan 15, 2020

Iranian Sanctions: Trends in Compliance and Enforcement

Wednesday, January 15, 2020 | 6:30 pm – 8:10 pm

Prefer to view the live webcast? Please CLICK HERE.

Program Fee:

Free for City Bar & Co-Sponsoring Members | $50 for Nonmembers

CLE Credit:
New York: 1.5 Professional Practice
New Jersey: 1.9 General
California: 1.5 General
Pennsylvania: 1.5 General
Connecticut: Available to Licensed Attorneys

This program provides transitional/non-transitional credit to all attorneys

Description:
This CLE program will provide an overview of the legal framework and current state of U.S. sanctions in Iran and discuss recent trends in compliance and enforcement related to Iranian sanctions. Attendees will gain an understanding of the scope of the U.S. sanctions regime in Iran and how the Office of Foreign Assets Control administers that regime. Attendees will also learn how to comply with the evolving sanctions regime when doing business in Iran and how to advise clients about potential liability related to sanctions in Iran.

Click Here to View Program Agenda & Faculty

Program Co-Chairs:
Timothy James McCarthy, Dykema
Marjan Kasra, The Law Offices of Marjan Kasra, LLC

Faculty:
Karen King, Paul, Weiss, Rifkind, Wharton & Garrison LLP
Erich Ferrari, Ferrari & Associates P.C.
Aaron Wolfson, King & Wood Mallesons

Sponsoring Association Committee:
Middle Eastern and North African Affairs, Timothy James McCarthy, Chair

Co-Sponsoring Organization:
Iranian American Bar Association

WhereNew York City Bar 42 West 44th St New York, NY 10036

E-1 / E-2 Visas affected

E2-treaty-visa

Department of State continues to tighten regulations with respect to Iran, further hindering issuance of visas to Iranian nationals: E-1 / E-2 Visas affected

U.S. Department of State (DOS) published the following:
1. Diplomatic relations with Iran were severed on April 7, 1980.
2. With certain exceptions pertaining to personal communications, humanitarian assistance, information exchange, and personal travel arrangements, all trade with Iran wasbanned pursuant to an executive order of May 8, 1995. Consequently, the issuance of virtually all “E-1” visas to nationals of Iran is
prohibited.
3. G visa applicants must submit their applications to either U.S. Embassy Bern or
U.S. Embassy Vienna. Please contact the consular sections in Bern and Vienna for additional details on the application process.

Important to note is the fact that on October 3, 2018, the Trump administration revoked the Treaty of Amity which had existed between Iran and USA since June 16, 1957. Said “Treaty of Amity” was meant to promote economic relations between the two countries, and was first signed in Tehran, Iran on August 15, 1955, entered into force on June 16, 1957, and later registered by the United States to the United Nations on December 20, 1957.

Iran had challenged the reinstatement of sanctions by filing documents with the Hague on July of 2018, accursing United States of “economic aggression.” Many believe that the revocation of the Treaty is a direct response to said complaint launched by Iran.

Both E-1 and E-2 visas rely on said Treaty as the basis for issuance of the same. As anticipated, in 2018, DOS only issued one E-2 Visa out of hundreds for Iranian nationals applying for E-2 visa overseas. Many Iranian nationals who have been living and working in the United States who are now due for E-1 / E-2 visa renewals have not been issued their visas.

The fate of the existing E-1 / E-2 visa holders already in the United States was unclear. The August 6th publication as cited above clearly prohibits issuance of E-1 visas to Iranian nationals, further solidifying the ripple effects as the result of revocation of Treaty of Amity. We anticipate similar affirmative announcements for E-2 visa holders from Iran.

Existing E-1 and E-2 visa holders are highly encouraged to immediately seek legal advice regarding their options.

E-1 / E-2 Visas news

us-visa-category

Department of State continues to tighten regulations with respect to Iran, further

hindering issuance of visas to Iranian nationals: E-1 / E-2 Visas affected
On August 6, 2019, U.S. Department of State (DOS) published the following:

1. Diplomatic relations with Iran were severed on April 7, 1980.
2. With certain exceptions pertaining to personal communications, humanitarian assistance, information exchange, and personal travel arrangements, all trade with Iran wasbanned pursuant to an executive order of May 8, 1995. Consequently, the issuance of virtually all “E-1” visas to nationals of Iran is
prohibited.
3. G visa applicants must submit their applications to either U.S. Embassy Bern or
U.S. Embassy Vienna. Please contact the consular sections in Bern and Vienna for additional details on the application process.

Important to note is the fact that on October 3, 2018, the Trump administration revoked the Treaty of Amity which had existed between Iran and USA since June 16, 1957. Said “Treaty of Amity” was meant to promote economic relations between the two countries, and was first signed in Tehran, Iran on August 15, 1955, entered into force on June 16, 1957, and later registered by the United States to the United Nations on December 20, 1957.

Iran had challenged the reinstatement of sanctions by filing documents with the Hague on July of 2018, accursing United States of “economic aggression.” Many believe that the revocation of the Treaty is a direct response to said complaint launched by Iran.
Both E-1 and E-2 visas rely on said Treaty as the basis for issuance of the same.

As anticipated, in 2018, DOS only issued one E-2 Visa out of hundreds for Iranian nationals applying for E-2 visa overseas. Many Iranian nationals who have been living and working in the United States who are now due for E-1 / E-2 visa renewals have not been issued their visas.

The fate of the existing E-1 / E-2 visa holders already in the United States was unclear. The August 6th publication as cited above clearly prohibits issuance of E-1 visas to Iranian nationals, further solidifying the ripple effects as the result of revocation of Treaty of Amity. We anticipate similar affirmative announcements for E-2 visa holders from Iran.

Existing E-1 and E-2 visa holders are highly encouraged to immediately seek legal advice regarding their options.

EB-5 Changes Are Here

eb5-changes-2019

EB-5 Changes Are Here: Final Rule Published on July 24, 2019

After two and a half years of anticipation, OMB’s (U.S. Office of Management and Budget) proposed rules for Modernization Regulation RIN-1615AC07, was sent for publication several days ago.

Everyone in the EB-5 industry pondered why it is taking so long for the rule to become public, but the wait is now over:

Department of Homeland Security (DHS) has made public the final rule changes for the EB-5 program. The changes will officially become published on July 24, 2019.

We have access to the unpublished version which contains all the new changes:
https://s3.amazonaws.com/public-inspection.federalregister.gov/2019-15000.pdf

Impact of the New Publication:
Here are the most important highlights which investors and Regional Centers should be aware of:

  • Changes go into effect as of November 21, 2019
  • Investment with the existing minimum amount is still possible if an investor is able to make a successful filing with a date prior to November 21, 2019
  • Minimum investment amounts will rise to $900,000 for Targeted Employment Area (TEA) and $1,800,000 for non-TEA areas.
  • TEA designation will no longer be made by the states. USCIS, not the states, will have the authority to designate an area as TEA
  • TEA designation is expected to become allot more restrictive, thus impacting multiple Regional Centers
  • USCIS is to make a new determination every 5-years, beginning October 2, 2024, whether the investment amount should increase further
  • Amendments or supplements made to offering documents which are necessary (in order to remain compliant with securities laws or with other new regulations) will not in themselves result in a denial or revocation of an EB-5 petition, provided that the petition meets all other requirements
  • If an investor has multiple approved I-526 petitions, that investor can retain the earlier priority date, so as to avoid additional processing time.

Serious investors are urged to act quickly. Some Regional Centers which may not have factored-in the potential changes may face issues with complying with the new regulations.

NOTE: The EB-5 program is set to expire on Sept 30, 2019. While Congress and stakeholders are diligently working on reauthorization, the deadline may be extended. If such an extension occurs, the rule published today may never take effect. Only Congress can enact all of the reforms necessary to modernize EB-5. The published changes do not address the much anticipated:

  • Fraud and national security measures which were highly anticipated
  • The rural and urban “distressed visa” allotment
  • The anticipated “Opportunity Zone” designations in urban areas

As of now, the date for the implementation of the new rules as outlined above is November 21, 2019 Please consult Lawmaks with any specific questions you may have.

PRESIDENT TRUMP’S TRAVEL BAN AND ITS EFFECTS ON U.S. IMMIGRATION

usa-flag

By: Marjan Kasra, Esquire & Babak Hojjat, J.D.

Under the Trump administration, entry into United States has been severely restricted for nationals of certain countries. Under Travel Ban 1.0, there was extreme chaos experienced at all ports of entry into United States. Airlines refused to board nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen on January 27, 2017, the implementation date of the first Travel Ban.

The constitutionality of the executive order was suspect from the get-go especially since the population of all these countries was predominantly comprised of Muslims. Travel Ban 1.0 caused extreme chaos at the airports, where even U.S. legal permanent residents (green card holders) were denied entry. This is due to the poorly written Travel Ban 1.0 and lack of warning or guidance from the administration and the Department of Homeland Security (DHS) to Customs and Border Protection (CBP).

As a result of Travel Ban 1.0, all existing immigrant and nonimmigrant visa appointments were cancelled and none of the already issued visas were being honored. Airlines stopped boarding individuals from said 7 nations for fear of being fined, and people who had already arrived at the U.S. ports of entry were being detained and refused entry.

This caused tremendous stress for not only the foreign nationals, but also for their U.S. counterparts. Following a week of public protests at the airports nationwide, a federal judge in Seattle blocked U.S. President’s executive order which by that time was being called the “Muslim Ban.”

The restraining order as issued by the Seattle Judge prompted the Department of State to restore visas and visa appointments of the affected nations. In addition, Homeland Security suspended all actions in terms of enforcing the ban.

Amid the chaos and confusion, the American Civil Liberties Union filed a class-action case on behalf of two nationals with valid visas who were blocked entry at JFK international airport.

A few days later, a federal judge in New York issued an emergency stay of removal, effectively stopping Department of Homeland Security from removing all visa holders and refugees with approved application on U.S. soil. Similar lawsuits followed against Trump in Virginia, Washington, Boston and Los Angeles.

The underlying theme of the grievance against the administration was rooted in violations of due process under Fifth Amendment as well as violations of the Establishment Clause of the First Amendment (as asserted by the Virginia Lawsuit).

After months of litigation, Travel Ban 2.0, a more “watered-down” version of the first one was introduced on June 29, 2017. Emergency motions were filed in Hawaii before the ban even went into effect, claiming that the Trump Administration was yet again attempting to ban certain class of individuals (Muslims) from entering the country.

This time around, Travel Ban 2.0 asserted that foreign nationals must prove a form of relationship with a parent, spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law or sibling in the US in order to enter the country. Other family members, including grandparents were initially excluded as they did not count as a “bona fide” relation to the foreign national, and later included (following lawsuits).

Unlike the original Ban, with this version, existing Green Card holders and those with the stated “bona fide” U.S. family members were exempt from the Ban.

On the eve of the Travel Ban 2.0 going into effect, Federal Judges in both Hawaii and Maryland put the Ban on hold to more fully consider its constitutionality.

After much litigation, in June of 2017, right before the Supreme Court took its summer recess, it gave the administration the win it needed…the Supreme Court’s ruling was unsigned by liberal justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan), but effectively lifted the hold on the ban. Conservative Justices Neil Gorsuch, Clarence Thomas, and Samuel Alito argued that the Trump administration should be allowed to enforce the Travel Ban in all cases.

This allowed the Trump administration to bar citizens of Iran, Libya, Somalia, Sudan, Syria, and Yemen from entering the U.S. for 90-days, and to bar nearly all refugees from entering the U.S. for 120 days.

Then came Travel Ban 3.0…..On September 24, 2017, Presidential Proclamation 9645 (no longer entitled “Executive Order”) was issued which imposed restrictions on eight countries: Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.

It also imposed added security measures on Iraqi citizens. Both 9th Circuit (Hawaii Plaintiffs) and 4th Circuit (Maryland Plaintiffs) issued injunctions against Travel Ban 3.0, again rendering the travel ban ineffective. However this time the Supreme Court, on December 4, 2017 granted the Trump Administration’s motions for emergency stay of preliminary injunctions.

Following said Supreme Court decision, President Trump’s most recent travel ban went into effect on December 8, 2017 for the predominantly Muslim countries while the appeals were still pending. The Supreme Court encouraged the appeals courts to quickly decide whether the most recent travel ban was lawful.

Effectively, the Presidential Proclamation appears to have resulted in the categorical denial of Immigrant Visas to unassuming families of U.S. Citizens (and LPR’s) who have waited between 1-13 years for a Visa to become available (wait time depends on which family or employment-base category is utilized).
Unlike Travel Ban 1.0, the visas issued to affected individuals prior to the Proclamation have not been revoked. However, there have been several reported incidents of invasion of privacy and prolonged questioning of the affected foreign nationals entering United States. There have been reports of similar abuse for even U.S. Citizens and Green Card holders who were born in the affected nations.

Unlike Travel Ban 1.0, under the existing Travel Ban, National Visa Center (NVC) continues to issue visa appointments. However, upon an interview at a given U.S. Consular Post, everyone (with a few visa category exceptions afforded some of the countries) is categorically denied a visa under with a generic statement reading “…a consular officer found you ineligible for a visa under Section 212(f) of the Immigration and Nationality Act, pursuant to Presidential Proclamation 9645.

Today’s decision cannot be appealed.”
Said denial notice then allows the U.S. Consular Post Officer to check mark one of the two indicated options: 1) A denial with no option to file a Waiver; or 2) A denial with an option to file a Waiver.

Although a Waiver process is supposed to be possible, it is unclear as to what standards of proof are being used to make this determination. Department of State issued a guidance on December 4, 2017, which is effectively a reiteration of the Presidential Proclamation without much added clarity. The DOS “guidance” indicates a Waiver from the Presidential Proclamation may be granted on a “case-by-case basis”, if a foreign national demonstrates to the consular officer’s or CBP official’s satisfaction that:

(a) Denying entry would cause the foreign national undue hardship;

(b) Entry would not pose a threat to the national security or public safety of the U.S.; and

(c) Entry would be in the national interest;

However, according to a bipartisan Senate letter (Jeff Flake & Chris Van Hollen) to the Secretary of the State (dated January 31, 2018), “…we have received reports of uniform denial of waivers for visas.” Furthermore, DOS has failed to provide the public with definitive guidance on waivers and to provide the qualifications and standard of proof for establishing waiver eligibility.
To make matters more complicated, on February 6, 2018 President Trump ordered establishment of a new government agency, “National Vetting Center,” housed with Department of Homeland Security, with a focus on further screening of immigrants, refugees, and other visitors.

It is unclear as to what standards will be used by the National Vetting Center, and whether these standards are uniform for all nationals, or whether the Administration will continue to target nationals of certain countries.

The Supreme Court hearings on Travel Ban 3.0 are to be held on April 25, 2018, and the general consensus in the legal community is that the Supreme Court will in all likelihood avoid making a merits based determination of the Travel Ban. It is now up to the U.S.

Supreme Court to decide whether the Judiciary will defer to the Executive Branch when it comes to matters of national security, and in that balancing act hangs the fate of millions of affected individuals from the predominantly Muslim nations.

Click here to read the ruling