On June 22, 2021, the U.S. District Court for the Northern District of California vacated the Final Rule of the EB-5 Immigrant Investor Program Modernization, which, among other terms, sought to increase the minimum investment amounts for the EB-5 program to account for inflation. In processing I-526 applications, the USCIS considers the Behring Regional Center decision, and will still accept filings using the Form I-526 April 15, 2019 version, which is the only updated DHS form that was part of the vacated rule.
New Law concerning Citizenship for Children of Military Members and U.S. Government Employees Stationed Overseas
On Sept. 18, 2020, the USCIS updated their policy guidance on residency requirements under Sec. 320 of the Immigration and Nationality Act (INA) to comply with the recently enacted Citizenship for Children of Military Members and Civil Servants Act.
Previously, a foreign-born child automatically acquires U.S. citizenship if the child (1) has at least one parent who is a citizen, (2) is less than 18 years old, and (3) is residing in the U.S. in the citizen parent’s legal and physical custody pursuant to a lawful admission for permanent residence.
Under the new law, a foreign-born child of a U.S. citizen member of the Armed Forces or government employee may automatically acquire U.S. citizenship even if the child is not residing in the U.S. The residency requirement is fulfilled if a foreign-born child is (1) living in the legal and physical custody of the citizen Armed Services member or government employee who has been stationed abroad (or the accompanying spouse of such a citizen), and (2) lawfully admitted for permanent residence in the U.S.
As of March 2020, U.S. citizen parents who are military or U.S. government employees or spouses of the same, and are stationed outside the U.S., can file for a Certificate of Citizenship, for children residing outside the U.S. because their children, if eligible under the new INA 320(c), are exempt from the residency requirement. Upon meeting the requirements and traveling to the U.S. to complete the process, the child will obtain a Certificate of Citizenship.
O-1 nonimmigrant status is available for aliens of “extraordinary ability” in the sciences, arts, business, education, and athletics, and aliens with a record of “extraordinary achievement” in the motion picture or television industry, who are coming to the United States temporarily to work in their area of ability or achievement.
O-2 nonimmigrant status is available for essential support personnel coming solely to assist an O-1 artist or athlete.
The new section expands evaluation guidelines on evaluating O-1 eligibility, including the petitioner has satisfied the evidentiary criteria and established that the beneficiary has extraordinary ability or extraordinary achievement, as applicable. It also clarifies when a petitioner may rely upon “comparable evidence” to meet the requirements for certain O-1 beneficiaries.
USCIS is also incorporating existing guidance relating to certain nonimmigrant athletes, coaches and entertainers (otherwise known as the P-1, P-2, and P-3 nonimmigrant classifications), and their essential support personnel.
Starting August 31, 2020, Form I-192 and Form I-765 filed in connection with a Form I-918 will be filed at the Nebraska Service Center, in addition to the Vermont Service Center. To be safe, always check the “where to file” section of any USCIS form you are using.
Companies interested in bringing in workers from abroad under the H1b program must be aware of the increasing trend in H1b visa denials and adequately prepare their applications.