Visa Lawyer Blog

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In this blog post we share very exciting news for H-1B and L visa holders working in the United States.

The State Department is planning to resume the process of domestic visa revalidation in certain categories, like H-1B and L-1 visas, through the launch of a new pilot program that will soon be implemented later this year, specifically benefitting H-1B specialty occupation workers and L-1 visa holders who are currently required to travel abroad for renewal of their visas.

This move will restore stateside visa renewals, a practice that was previously discontinued by the government in 2004. Previously, certain categories of non-immigrant visa holders, particularly H-1B workers, could renew their visas and be stamped domestically while inside the United States. However, the government stopped allowing domestic renewal of these visas, requiring foreign workers to go out of the country and make an appointment at a U.S. Embassy or Consulate in their home country to receive an H-1B extension stamped in their passport.

The pilot program when fully implemented will benefit H-1B and L-1 workers allowing them to receive their stamping inside the United States without having to leave the country. This will help reduce the visa backlogs at U.S. Embassies and Consulates worldwide.

Additionally, the pilot program will potentially benefit tens of thousands of foreign workers, especially technology workers from India, where Consular operations are some of the busiest in the world.

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In this blog post, we share with you some new updates regarding the employment-based numerical limits for immigrant visas in fiscal year 2022.

As a result of the global COVID-19 pandemic and the suspension of visa services at U.S. Consulates and Embassies worldwide, approximately 140,000 family-sponsored visa numbers went unused during fiscal year 2021.

This was due to the pent-up demand for in-person visa interviews that could not be accommodated. Fortunately, these visa numbers have trickled down to the employment-based categories, expanding the number of visa numbers available in fiscal year 2022 to nearly double the usual amount.

Sadly, fiscal year 2022 is nearly coming to a close. To provide the public with more transparency regarding the usage of employment-based visa numbers, the U.S. Citizenship, and Immigration Services (USCIS) has updated its frequently asked questions for employment-based adjustment of status. We breakdown the questions and answers down below.

How many employment-based visas did USCIS and DOS use in FY 2021? How many employment-based visas went unused in FY 2021?

A: The annual limit for employment-based visa use in FY 2021 was 262,288, nearly double the typical annual total. The Department of State (DOS) publishes the official figures for visa use in their Report of the Visa Office.

Overall, the two agencies combined to use 195,507 employment-based immigrant visas in FY 2021.

  • DOS issued 19,779 employment-based immigrant visas, and USCIS used 175,728 employment-based immigrant visas through adjustment of status, more than 52% higher than the average before the pandemic.
  • Despite our best efforts, 66,781 visas went unused at the end of FY 2021.

UPDATED: Can you estimate how many family-sponsored or employment-based immigrant visas USCIS and DOS will use during FY 2022?

A:  DOS has determined that the FY 2022 employment-based annual limit is 281,507 – (slightly more than double the typical annual total) – due to unused family-based visa numbers from FY 2021 being allocated to the current fiscal year’s available employment-based visas.

  • Through July 31, 2022, the two agencies have combined to use 210,593 employment-based immigrant visas (FY2022 data is preliminary and subject to change).
  • USCIS alone approved more than 10,000 employment-based adjustment of status applications in the week ending August 14, 2022, and DOS continues its high rate of visa issuance, as well. USCIS states that it will maximize our use of all available visas by the end of the fiscal year and are well-positioned to use the remaining visas.

NEW: Will my case be processed faster if I file a second Form I-485?

A: Submitting a new adjustment of status application typically does not result in faster adjudication and may have the opposite effect by adding extra burden to the USCIS workload.

  • USCIS is identifying and prioritizing all employment-based adjustment of status applications with available visas and approved underlying petitions, including those received prior to this fiscal year. This includes applications where noncitizens have submitted a transfer of underlying basis requests.

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Welcome back to Visalawyerblog! We kick off the start of the week with exciting news from the U.S. Citizenship and Immigration Services (USCIS).

On July 15, 2022, USCIS announced the second phase of the expansion of premium processing service for petitioners who have a pending Form I-140 Immigrant Petition for Alien Workers, under the EB-1 and EB-2 employment-based classifications.

As with the first phase of the premium processing expansion, the second phase of expansion only applies to certain previously filed Form I-140 petitions under the EB-1-3 multinational executive and manager classification, or EB-2 classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver (NIW) that were filed on certain dates. Only such petitions will be eligible to upgrade to premium processing using Form I-907, Request for Premium Processing Service.

Who will benefit?

Beginning August 1, 2022, USCIS will accept Form I-907 Premium Processing requests for:

  • EB-1-3 multinational executive and manager petitions received on or before July 1, 2021; and
  • EB-2 NIW petitions for advanced degree or exceptional ability received on or before August 1, 2021.

USCIS has explicitly made clear that it will reject premium processing requests for these Form I-140 classifications if the receipt date is after the dates listed above. For cases eligible to upgrade to premium processing, USCIS will guarantee 45 calendar days to take adjudicative action for these requests for premium processing service. USCIS will not accept new (initial) Forms I-140 with a premium processing request at this time for petitions that do not explicitly fall under the above categories.

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The bad news continues for the EB-5 Immigrant Investor Regional Center Program. As our readers will know, the EB-5 Regional Center program has been in a period of lapse following Congressional failure to reauthorize the program after its expiration at midnight on June 30, 2021. Such reauthorization was expected to be included in the government’s appropriations funding bills, but no such action has yet taken place to extend the program.

In a glimmer of hope, on December 3, 2021, President Biden signed H.R. 6119 into law, “Further Extending Government Funding Act” which includes a short-term continuing resolution that funds the federal government through February 18, 2022. EB-5 Regional Center legislation extending the program is expected to be included in future appropriation bills.

With its hands tied on the matter, on October 4, 2021, USCIS updated its website to indicate that it would not be accepting new I-526 petitions based on a regional center investment, but would be placing all pending I-526 petitions based on the Regional Center program in “abeyance,” (a temporary hold), as well as placing all pending I-485 green card applications based on a Regional Center investment on hold at least through the end of 2021, pending further action from Congress. No acting is being taken on applications placed on hold.

I-829 Petitions filed by conditional permanent residents under the Regional Center program remain unaffected. USCIS has confirmed that such applications are being accepted and processed by the agency.

Acting upon the government lapse, for its part, the Department of State has stopped processing immigrant visa applications for EB-5 Program applicants altogether.

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Can you receive a green card under the EB-2 classification (National Interest Waiver) as the developer of an innovative application that improves the health and wellness of chronically ill U.S. Citizens?

In this blog post, we share with you how our office was able to do just that despite initial challenges that were presented in our client’s case and previous unsuccessful filings in other visa classifications, where the adjudicating officer refused to recognize the applicant’s extraordinary ability in the field of health and business development despite a plethora of documentary evidence of his unique skills.

An Overview: What are the EB-2 NIW Requirements?

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Federal District Judge Rules to Reinstate $500,000 Minimum Investment For the EB-5 Visa Program

In this blog post, we share with you a new landmark court decision affecting the EB-5 Immigrant Investor Visa Program, known as matter of Behring Regional Center LLC V. Chad Wolf et al.

In this case, decided on June 22, 2021, the U.S. District Court of the Northern District of California vacated the controversial 2019 ‘EB-5 Modernization Rule’ that sought to ‘modernize’ the EB-5 visa program, by increasing the minimum investment amount from $500,000 to $900,000.  In her ruling, Judge Corley concluded that the 2019 Modernization Rule should be vacated because the former acting DHS Security, Kevin McAleenan was not properly appointed in his position under the Federal Vacancies Reform Act when he implemented the Regulations.  Therefore, the officials had no legal authority to make and to announce the changes.

The judge’s new ruling means that the district court’s decision will restore the original rules for the EB-5 program, initially established by the Immigration Act of 1990 as a legal pathway to provide qualified foreign/immigrant investors the opportunity to obtain permanent residency in the U.S. (commonly known as the “green card”). The now-defunct EB-5 Modernization Regulations of 2019 had increased the minimum investment amount from $500,000 to $900,000, but with this new ruling the minimum investment amount has again reverted to $500,000.

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We kick off the start of a brand-new week with some important information for immigrant and nonimmigrant visa applicants residing in regions currently affected by the four geographic Presidential Proclamations still in place, for non-citizens in the Schengen countries, the United Kingdom, China, Iran, Brazil, South Africa, and India.

The Presidential Proclamations, collectively known as the COVID-19 Geographic Proclamations are as follows:

  • Presidential Proclamation 10143 (Schengen Area, United Kingdom, Ireland, Brazil and South Africa)
  • Presidential Proclamation 9984 (China)
  • Presidential Proclamation 9992 (Iran)
  • Presidential Proclamation 10199 (India)

*The Schengen countries include Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.

The COVID-19 Proclamations were issued early on during the pandemic to help contain the rapid spread of the Coronavirus in the United States, by limiting the entry to the United States, of non-citizen travelers who were physically present in any of the impacted regions during the 14-day period, prior to their planned entry or attempted entry to the United States.

To comply with these Proclamations, U.S. Embassies and Consulates worldwide have been unable to issue nonimmigrant and immigrant visas to those who have been physically present in any of the above mentioned 33 covered countries. But all of that has recently changed thanks to new National Interest Exception designations made by the Secretary of State for certain types of travelers.

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President Signs New Bill Authorizing Additional Funding for PPP

Last week President Trump signed a new bill into law that provides an additional $310 billion in aid to small business owners that will be funneled into the Paycheck Protection Program (PPP) and the Economic Injury Disaster Loan program (EIDL) administered by the United States Small Business Administration (SBA).

As a recap, the PPP and EIDL was first introduced by the CARES Act (Coronavirus Aid, Relief, and Economic Security Act) to help small businesses keep workers on their payroll.

Out of the $310 additional funding, $60 billion will go toward the EIDL program, $250 billion will go toward PPP loans, and $60 billion will be set aside for community banks and community development financial institutions (CDFIs).

Additional funding was required because the first round of $349 billion in aid ran out after just a few weeks of the program being put into effect.

Small business owners who are still need of funds to help pay their company’s payroll costs should take advantage of the additional funding as soon as possible. Intense demand remains high for these forgivable-low interest loans, and funding will dry up quickly.

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For many small businesses struggling to survive in the wake of the COVID-19 pandemic, receiving a Paycheck Protection Program (PPP) loan was the only option to stay afloat.

Unfortunately, the $350 billion in aid set aside by the CARES Act has run out. While it is believed that Congress will approve a second round of appropriations to fund the Paycheck Protection Program throughout the pandemic, there is no guarantee that this will occur.

What will happen to those who applied for a loan but did not receive any funds before the money ran out?

Those who submitted a PPP application through their lenders still have a good chance of getting funded as financial institutions continue to process loan applications that were submitted. Many lenders have not gotten around to notifying borrowers that they have been approved and will be funded. Borrowers should contact their lenders to follow up with the process.

Furthermore, according to recent information provided to the American Immigration Lawyers Association (AILA) by SBA expert Chris Chan, small business owners should keep the following things in mind when considering their next steps:

  • Businesses that applied up until a few days ago still have a real shot at hearing good news from their banks. Those that have already been approved by their bank should all get money within the 10 days required by law.
  • If the loan has an SBA number attached to it, that means it made it through the initial phase of processing and will likely be part of the loan amount that’s been approved. It doesn’t mean the loan could not be denied for other reasons, but there is hope in this scenario.
  • Other loans submitted under PPP may be declined, which would free up cash under the $349 billion for other loans in the queue to be processed.
  • There is bipartisan support of adding an additional $250 to $300 billion to the program in CARES Act 2. Congress is hung up over other provisions and adaptations that they want in the program, but there was news coverage this weekend that indicated they are close to an agreement.

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In this post we would like to address some of our clients frequently asked questions regarding the Payment Protection Program, a loan forgiveness program created by the CARES Act (Coronavirus Aid, Relief, and Economic Security Act).

In response to the Coronavirus pandemic, the United States government recently passed a bill providing emergency financial relief to individuals, families, and small businesses. As you know, the majority of states nationwide have issued stay-at-home orders requiring the public to avoid all nonessential outings and stay at home as much as possible. Non-essential businesses have also been ordered to close their facilities to the public until further notice. Essential businesses have been allowed to continue to operate such as grocery stores, pharmacies, health care facilities, banking, law enforcement, and other emergency services.

One of the main provisions of the bill, known as the CARES Act (Coronavirus Aid, Relief, and Economic Security Act), allocates billions of dollars in loans to small businesses who are feeling the economic impact of the stay-at-home orders. The CARES Act specifically authorized the Small Business Administration (SBA) to create the Payment Protection Program for the purpose of providing financial assistance to small businesses nationwide that have been adversely impacted by the COVID-19 crisis. SBA lenders began accepting loan applications from small business owners on April 3, 2020. Applications will continue to be accepted until June 30, 2020. It is important for business owners to apply for these loans as soon as possible.

  1. What is the Payment Protection Program?

In a nutshell, the Payment Protection Program is a loan forgiveness program that allows small businesses (of 500 or fewer employees) to apply for loans of (1) $10 million or (2) 2.5x the average total monthly payments of the company’s payroll costs, whichever is less.

Loans under this Paycheck Protection Program (PPP) will be 100 percent guaranteed by SBA, and the full principal amount of the loans will qualify for loan forgiveness provided that:

(1) the business was in operation on February 15, 2020 and either had (a) employees for whom you paid salaries and payroll taxes or (b) paid independent contractors as reported on Form 1099;

(2) all employees are kept on the payroll for 8 weeks and;

(3) the money is used for payroll costs, rent, mortgage interest, or utilities (at least 75% of the forgiven amount must have been used for payroll).

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