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FMG Law Blog Line

Posts Tagged ‘Green Card’

Foreign Students and Exchange Visitors Beware!

Posted on: May 15th, 2018

By: Layli Eskandari Deal

On May 10, 2018, USCIS published a Policy Memorandum to provide guidance on how the agency will be calculating unlawful presence for F-1, J-1, and M-1 nonimmigrant visa holders and their dependents.

Generally, foreign students and exchange visitors are admitted to the United States for “Duration of Status”.  This means that the student or the exchange visitor is admitted to the United States for as long as the individual is still doing the activity for which the visa was issued.  For nonimmigrant (F-1 and M-1) this is generally for the duration of time that they are full time students plus the time they are in their period of authorized practical training.  The length of time generally depends on their course of study.  For Exchange Visitors (J-1) this is the period of time for their program to be completed.  Previously, unless USCIS or an Immigration Judge affirmatively terminated the status, F-1, M-1 and J-1 visa holders and their dependents would not accrue unlawful presence in the United States.

USCIS is now providing the following guidance, which is a significant change in how USCIS has treated “Duration of Status” in the past:

Individuals in F, J, and M status who failed to maintain their status before August 9, 2018, will start accruing unlawful presence on that date based on that failure, unless they had already started accruing unlawful presence on the earliest of any of the following:

  • The day after DHS denied the request for the immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
  • The day after their I-94 expired; or
  • The day after an immigration judge, or in certain cases, the Board of Immigration Appeals (BIA), ordered them excluded, deported, or removed (whether or not the decision is appealed).

Individuals in F, J, or M status who fail to maintain their status on or after August 9, 2018, will start accruing unlawful presence on the earliest of any of the following:

  • The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in an unauthorized activity;
  • The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
  • The day after the I-94 expires; or
  • The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).

Accruing unlawful presence can prevent an individual from being able obtain a change of status to another visa category while in the United States or obtaining a new visa at a US Embassy or Consulate.  It can also prevent an individual from obtaining US Residency (green card).  It is very important that international students and exchange visitors understand this new guidance and confer with their immigration attorney regarding any questions.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Layli Eskandari Deal of the law firm of Freeman Mathis & Gary, LLP at (770-551-2700) or [email protected].

Is the EB-5 “Golden VISA” Losing it’s Luster? Why Reduced Interest in the EB-5 Program May Lead to an Increase in the U.S. Unemployment Rate

Posted on: October 25th, 2017

By: Kenneth S. Levine

For the last several years the EB-5 Green Card program has been widely touted as a relatively quick and direct path to obtaining U.S. Permanent Residency. The program, which grants permanent residency based on a $500,000 minimum investment in USCIS approved regional center projects, has been especially popular in China. According to a CNBC article from April 2017, USCIS estimated that Chinese citizens represented 85% of all Applicants in the EB-5 Program. News interviews with Chinese EB-5 Applicants reveal that, for the vast majority, their prime motivation to invest in the program was based on a desire to permanently settle their children in the U.S. Aggressive efforts to attract Chinese EB-5 Investors gave rise to a cottage industry of EB-5 agents and financial advisors in Beijing, Shanghai and Shenzhen.

Every year the United States makes available the same number of green cards to every country in the world, regardless of the size of their population. When more green card applications from one country are submitted than there are visas made available for that year, a green card backlog results. For example, the State Department is processing EB-5 green cards only for Chinese Applicants who submitted their applications prior to July 1, 2014.

Based on mainstream media reports, the EB-5 backlog for China has resulted in diminished interest in the program among Chinese citizens. Due to the quota backlog, green card cases may not be processed before the children of Chinese Applicants turn 21. That is the key concern for Applicants, because under the Immigration and Nationality Act, once a child turns 21, they are no longer eligible to act as dependents on green card cases filed by their parents. Accordingly, Chinese Investors are beginning to turn their attention to immigrant investor programs in Canada and Australia as a backup option to permanently settle their children.

If Applications from Chinese citizens begin to dwindle then less investment capital will be available to fund new or ongoing EB-5 regional center projects, directly translating into reduced jobs for U.S. workers. Unless Congress is willing to pursue a legislative fix to this issue, it may be difficult if not impossible to replicate that same level of EB5 interest from other countries.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth S. Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected].