Yesterday, Senator Grassley, R-IA, informed the Senate that he was placing a “hold” on the Senate’s consideration of HR-3012.  Such a hold greatly complicates the ability of the Senate to pass the bill, as it is a warning that the Senator would filibuster the bill if it came to the floor.

You can read my thoughts on the bigger picture at AILA’s Leadership Blog, but it’s enough to note that for now, the bill is effectively dead unless other Senators can convince Senator Grassley to remove his hold.

Director Mayorkas’ proposal has three major elements.

One element of great importance is providing for accelerated processing (target two months) and premium processing (15 day processing) for “shovel ready” projects. This would apply to the regional center designation application, the exemplar I-526 project preapproval and the petitions of the investors in these projects. Although the definition of “shovel ready” is ambiguous and might better be defined as a project for which the developer is ready to seek investment capital, the concept is a very important one. Present processing times are unrealistic, and developers cannot be expected to wait the 12 to 18 months necessary for a regional center to be approved, a project to be approved, and an investor’s petition to be approved.

The second key component of the Mayorkas proposal involves the hiring of qualified expert personnel to adjudicate regional center designation applications and project pre-approval applications. Director Mayorkas proposes to add economists and business analysts for this purpose. Economic development specialists might also be added to the USCIS staff. The issues to be adjudicated in these applications are both complex and technical, and the Immigration Service needs to bring to the task professionals experienced in dealing with these issues.

The third major component of the Mayorkas proposal is to change the regional center and project pre-approval process from an adversarial to a consultative process. The Director proposes to change the present petition filing/RFE/RFE response process into one where the developer would have the right to a hearing with the expert professionals described above in order for the Service to articulate any questions or concerns and for the developer and his team of professionals to provide answers. This should result in faster, better and more informed adjudications.

The public has had an opportunity to comment on the proposal. Although commenters no doubt suggested improvements to the proposal, there is no question that implementation of the proposal, with whatever changes are deemed appropriate, will be a major step forward in making the EB-5 program more attractive for businesses seeking capital. This would be consistent with President Obama’s Select USA Initiative to attract more foreign direct investment into the U.S.

Although the proposal is a major step forward, it means nothing unless and until it is actually adopted by USCIS. The public eagerly awaits notification of its implementation.

Whether this acceleration in priority dates will be sustained in the coming months remains to be seen. The State Department explains that there is an increased demand by applicants “upgrading” their category from EB-3 to EB-2, which could potentially stymie the advancement of EB-2 priority dates. Nonetheless, the impact of this increased EB-2 demand has so far been minimal. The State Department cautions that priority date cut-offs for upcoming months cannot be guaranteed and therefore no assumptions should be made. At this time, we make no changes to our prediction that decreased EB-1 applications and approval rates should advance Chinese and Indian EB-2 priority dates to late 2006, and perhaps to January 2007, by September of 2011.

The State Department said it would be able to release an extra 12,000 visas for processing in EB-2 this year because of USCIS reporting low demand (and low approval rates) in EB-1.  The “extra” numbers that “spill down” to EB-2 from EB-1, plus the regular ones (about 2300 each for India and China), should get the priority dates to late 2006, and perhaps to January 2007, by September of 2011.  Continue to monitor the Visa Bulletin each month for updates.

A caveat against reading too much into the NVC action: recall that it was imperfect information-sharing between USCIS and the State Department that led to the July 2007 “Visagate” debacle, and NVC likely has a small minority of the overall number of visa petitions with India and China EB priority dates in 2006 and early 2007, since so many of those beneficiaries could file for adjustment of status in July of 2007.

It’s also possible that NVC is simply trying to get cases set up with fees paid and documents submitted in case the numbers stay current for the rest of the fiscal year – but applicants would lose their filing fees if the numbers retrogress later this year.

We will have to wait for the May Visa Bulletin from the State Department, likely released by April 13 or so, for more detailed information on the State Department’s thinking.

The last pending I-485 inventory number released from USCIS said that, as of January 2011, there were about 5,000 pending I-485s for EB-2 China with priority dates earlier than January 1, 2007, and there were about 14,000 pending I-485s for EB-2 India with priority dates earlier than January 1, 2007.

So, the “extra” numbers that “spill down” to EB-2 from EB-1, plus the regular ones (about 2300 each for India and China), should get the priority dates to late 2006, and perhaps to January 2007, by September of 2011.

While that is still better than no movement at all, it is far from being current.

1) As long as I visit the United States at least once every six months, I’ll be fine; or

2) If I leave for any length of time, I’ll put my status in jeopardy.

The actual rules are much more complex and nuanced, but fortunately, can often be used correctly to maintain status for significant periods of residence abroad.

The two most important rules for permanent residents to know are 1) abandonment can be an issue at any time, even where the permanent resident visits the United States each six months; and 2) CBP at the airport cannot actually “take away” permanent resident status (though they can try to cajole/pressure the permanent resident to give it up voluntarily).

If you are planning any significant time overseas, please review our Green Card Holder’s Guide to Travel, Residing Abroad and Preventing Loss of Permanent Resident Status, or have a consultation with one of our lawyers.

 
There are two important fee changes listed in the proposed rule. First, the proposed rule establishes a tiered application processing fee for immigrant visas depending on the visa category, as determined by the cost of processing that particular category of visa. Second, the proposed rule increases the adult passport book application fee from $55 to $70.

 
1. Immigrant Visa Processing Fees

 
DOS is changing the fee for processing an immigrant visa from $355 for all immigrant visas, to a four-tiered fee based on estimates for each category of immigrant visa, as applications for certain categories of immigrant visas cost more to process than others. As a reminder, immigrant visa fees are collected by the DOS when applicants apply for an immigrant visa at a U.S. Embassy or Consulate abroad, rather than applying for a green card in the U.S.

 
The new tiered system will have the following cost changes:

 
· Family-based (immediate relative and preference) visas, which are processed on the basis of an I-130, I-600 or I-800 petition, will be $330.

· Employment-based visas, which are processed on the basis of an I-140 petition, will increase significantly to $720.

· Other immigrant visa applications, including for I-360 self- petitioners, special immigrant visa applicants and all others, will have a fee of $305.

· Winners of the Diversity Visa lottery who apply for immigrant visas will increase from $375 to $440 based on estimates for an FY 2010 workload projection of 81,000 applications.

· DOS also is increasing the immigrant visa security surcharge, which almost all applicants must pay, from $45 to $74 to cover increased security costs.

 
2. Fees for U.S. Passports

 
DOS is increasing the application fee for a passport book for an adult (age 17 and older) from $55 to $70. The application fee for a passport book for a minor (age 16 and younger) will remain at $40. DOS also is increasing the security surcharge from $20 to $40 as well, in order to cover the costs of increased border security which includes, but is not limited to, enhanced biometric features in the passport book itself.

 
Additional fee increases for passport services:

 
· Extra pages – In the past, DOS provided extra pages in a customer’s passport, to which foreign countries’ visas may then be affixed, at no charge. DOS now will charge $82 for this service.

· Passport Card – DOS has decided to raise the adult passport card application fee from $20 to just $30, and the minor passport card application fee from $10 to just $15.

· Documentation for Renunciation of Citizenship – The cost study found that documenting a U.S. citizen’s renunciation of citizenship is extremely costly, requiring American consular officers overseas to spend substantial amounts of time to accept, process, and adjudicate cases. A new fee of $450 will be established to help defray a small portion of the total cost to the government of documenting the renunciation of citizenship.
When will the fees increase?

 
DOS intends to implement this proposed rule, and initiate collection of the new fees, as soon as practicable following the expiration of the 30-day public comment period following publication in the Federal Register on February 9, 2010, and after the DOS has had the opportunity to fully consider any public comments received. Klasko will alert our clients who may potentially be impacted by the increased fees.

The Eb-3 category cutoff for skilled workers is June 22, 2001 for India and July 1, 2002 for Mexico. The cutoff for China, Philippines, and all other countries is August 1, 2002. The cutoff for Eb-3 unskilled workers is June 1, 2001.

The January 2010 Visa Bulletin also contains the first projection of what priority dates are likely to become currently during this fiscal year, which  is of great interest to adjustment of status applicants with long-pending applications.  The Visa Bulletin predicts, based on current indications of demand, the best case scenarios for cut-off dates which will be reached by the end of FY-2010 (that is, by September 30, 2010) are as follows:

Eb-2:
China: July through October 2005
India: February through early March 2005

Eb-3:

Worldwide: April through August 2005
China: June through September 2003
India: January through February 2002
Mexico: January through June 2004
Philippines: April through August 2005

The Dept. of State advises that the above date ranges are only estimates which are subject to fluctuations in demand during the coming months. The actual future cut-off dates cannot be guaranteed, and it is possible that some annual limits could be reached prior to the end of the fiscal year.

Since last summer, permanent residents with significant net worth have an important reason not to lose their “green card” status – saving themselves from a big tax bill.  Over on the main site, we’ve posted an update on the HEART Act, which imposes an “exit tax” on permanent residents who lose that status.

We hope this general summary, along with our guide to maintaining permanent resident status while residing abroad, provide a helpful summary.  This area of law is complicated, however, so we’d be happy to speak with you about your particular situation.