COVID-19 and Presidential Executive Orders
Amid the disruption and uncertainty caused by the COVID-19 global pandemic, President Trump has issued a number of executive orders limiting the entry of immigrants and nonimmigrants into the U.S. The April 22 Presidential Proclamation suspended the entry of many immigrants but applied only to those outside the U.S. applying for immigrant visas and, notably, exempted EB-5 investors specifically.
The June 22 Presidential Proclamation extended the April order and also suspended the issuance of all new H-1B, H-2B, J, and L visas. Both executive orders will remain in effect until the end of 2020. The June order affects foreign nationals who had travel plans and needed to renew their visas before returning to the U.S.
As many H-1B visa holders are well aware, these travel bans are just two of the many ways immigrating to the U.S. continues to become more difficult, even for those in highly specialized occupations. While foreign nationals face one restriction after another, it’s a good time to reflect on what green card options are still viable for those who seek permanent residence.
A green card provides many well-known benefits such as permanent residence and unrestricted employment opportunities. However, as seen more recently, a green card also establishes a level of stability that nonimmigrant visas cannot provide. The executive orders mentioned above, as well as the other COVID-19 related policies restricting travelers from China, Iran, Europe, and Brazil all exempt permanent residents and U.S. citizens.
Robert Blanco and EB5 United team at an H-1B to EB-5 conference
Why Should Indians Still Consider EB-5?
How does EB-5 fit in to the current immigration landscape? For many, EB-5 is still a good choice. One of the biggest benefits for most Indian applicants is the comparably shorter wait times than the severely backlogged EB-1/2/3 categories.
In the July 2020 Visa Bulletin, the India EB-5 Final Action Date is current once again. According to Charles Oppenheim, Chief of the Visa Control and Reporting Division at the U.S. Department of State, the India EB-5 category is expected to remain current for the rest of Fiscal Year 2020 (ending September 30, 2020). This is important because it allows any Indian EB-5 investor with an approved I-526 petition to file an adjustment of status application, which includes an employment authorization document and advance parole travel permit.
The advantages of an unrestricted work permit are clear to most foreign nationals in nonimmigrant status. However, the advance parole is increasingly important in the current climate. Consulates have been closed for routine visa issuance since March and the presidential proclamations discussed above suspend visa issuance in certain categories for the rest of the year. Advance parole documents are issued by USCIS within the U.S. and, importantly, foreign nationals holding an advance parole travel document are exempt from the June 22 proclamation affecting nonimmigrant employees. An EAD can also help foreign nationals who lose their jobs, since it is easier to find a job without requiring visa sponsorship.
It is important to note that the current India EB-5 Final Action Date does not mean there is no backlog for Indian EB-5 investors. There are many Indian investors who have already filed their I-526 petitions and will likely remain in front of any future investors. In fact, the current EB-5 Final Action Date is likely a result of very slow I-526 adjudications, resulting in fewer Indian investors using EB-5 visa numbers. However, like the other green card categories, it is impossible to accurately predict how large the backlog is or how long the wait for a green card will be.
Consulate closures have further complicated visa usage and waiting time estimates but could result in good news for FY 2021. The Immigration and Nationality Act (“INA”) allocates unused visas to oversubscribed categories within the employment-based and family-based categories. It also allocates unused family-based green cards from the prior year to employment-based categories, and vice versa. Due to the expected number of unused family-based visas in FY 2020 caused by consulate closures, Mr. Oppenheim expects a greater number of employment-based visas available in FY 2021.
It is important to remember Mr. Oppenheim’s normal caveat to these predictions – the actual visa usage and supply of available green cards can always change. Nevertheless, this is good news for EB-5 applicants.
At the end of the day, EB-5 is still much faster for most Indian applicants than the massive EB-2 and EB-3 waiting lines for India. For those with existing EB-2 or EB-3 priority dates filed many years ago, this requires a careful analysis and an individual determination.
Disclaimer: The information provided is for informational purposes only and does not constitute legal advice. Please contact an attorney to obtain advice about a particular issue.
About the Author
Robert Blanco prepares both immigrant and non-immigrant petitions for skilled workers, executive managers, high net worth investors, and people of extraordinary ability in the arts, sciences, and business. His experience enables him to develop creative solutions for clients with complex immigration cases. He also prepares EB-5 green card petitions for individual investors and advises U.S. businesses on how to structure investment projects under the regulations of the EB-5 program. His experience with Indian investors on H1B is vast with many hailing from the top FAANG companies.
About EB5 United
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