E-1 / E-2 Visas news

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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

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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.

Travel Ban (Waiver)

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Iranian nationals, along with nationals from 7 other countries (Chad, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen) are subject to the Presidential Proclamation 9645, dated September 24, 2017 with an applicable implementation date of December 8, 2017.

This was following the December 4 2017 stay by the Supreme Court pending further proceedings in the courts of appeals.

According to the Presidential Proclamation 9645 dated September 24, 2017, which was implemented as of December 8, 2017, a Waiver may be granted on a case-by-case basis as follows:

“(iv) Case-by-case waivers may not be granted categorically, but may be appropriate, subject to limitations, conditions, and requirements set forth under subsection (i) of this subsection and the guidance issued under subsection (ii) of this subsection, in individual circumstances such as the following:

The foreign national has previously been admitted to the United States for a continuous period of work, study, or other long-term activity, is outside the United States on the applicable effective date under section 7 of this proclamation, seeks to reenter the United States to resume that activity, and the denial of reentry would impair that activity;

The foreign national has previously established significant contacts with the United States but is outside the United States on the applicable effective date under section 7 of this proclamation for work, study, or other lawful activity;
The foreign national seeks to enter the United States for significant business or professional obligations and the denial of entry would impair those obligations.

The foreign national seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is the United States Citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry would cause the foreign national undue hardship;…” Federal Register / Vol. 82, No. 186 / Wednesday, September 27, 2017 / Presidential Documents 45169;

For purposes of determining if someone is eligible for the waiver based on a “close family member,” the guidance indicates that, in the context of the Proclamation, the term “close family member” only includes spouses, children under the age of 21, and parents of U.S. Citizens, of lawful permanent residents, and of alien lawfully admitted to the U.S. on a valid nonimmigrant visa. While the INA definition includes only children, spouses, and parents of a U.S. Citizen, in the context of the Presidential Proclamation it also includes these relationships with LPRs and aliens lawfully admitted on a valid nonimmigrant visa in addition to U.S. Citizens.

According to the DOS guidance dated December 4, 2017, “…a consular officer will make a determination whether an applicant otherwise eligible for a waiver under the Proclamation and therefore issued a visa.”

According to said DOS guidance, a Waiver 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:

Denying entry would cause the foreign national undue hardship;
Entry would not pose a threat to the national security or public safety of the U.S.; and
Entry would be in the national interest;

Hardship: You must make arguments as to why the U.S. Petitioner may not be able to go back to Iran on a long term basis and point out the hardships such as loss of job, or University enrollment, etc. In addition, any emotional or financial hardship may be discussed.

National Security: As the U.S. Embassy no longer honors Iranian issued Police Clearance Letters, we take added measures to clear Beneficiary’s name(s). Lastly, you must complete detailed Form DS-5535.

National Interest: In order to prove that the issuance of the visa is in the National Interest, we review with you your educational background, and your aspirations for after you enter the United States. We also point out long standing U.S. national policies which aim to keep families together as well as United States Congressional Acts which combat nationalism and racism.

The Presidential Proclamation stipulates that the Secretaries of State and Homeland Security shall “adopt guidance addressing the circumstances in which waivers may be appropriate for foreign nationals seeking entry as immigrants or nonimmigrants.” The December 4th alert by DOS refers back to the proclamation and is virtually a reiteration of the Proclamation itself.

To date, the administration has not offered a detailed guidance on the waiver program, and we are left with unanswered questions as to what the Administration considers “undue hardship,” what criteria determines whether a waiver is “in the national interest,” and how a consular or CBP officer will determine whether a foreign national poses a threat.

In a U.S. Senate Letter written by Senators Chris Van Hollen (D-MD) and Jeff Flake (R-AZ) on January 31, 2018, a complaint is made regarding the fact that the Secretaries of State and Homeland Security have failed to guidance to consular posts or CBP officers on how to go about the “case by case” determination.

For a copy of this letter, please click here.

Travel ban update

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The high court agreed to review whether the bid to impose a variety of travel restrictions for nationals of Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen and Somalia is the result of either an exhaustive, security-based review process by various government agencies, as the federal government contends, or an effort to restrict members of a particular religion, as several states allege.