State Department Reports Technical Issues with Visa Systems

The State Department's Bureau of Consular Affairs continues to experience technical problems with its visa systems. The problems stem from a hardware failure in a State Department facility in the United States on June 9. That failure is preventing the State Department from processing and transmitting biometric data checks at visaissuing embassies and consulates around the world. The agency hopes to have a fix in place sometime this week, but cannot provide any guarantees.

Individuals with previously scheduled visa appointments should plan to appear, but should also be prepared for the possibility of receiving a "cancellation" notice or a notice asking the applicant to reschedule his or her appointment. Additionally, we anticipate longer wait times for scheduling appointments over the course of the next few weeks, given the likely backlog that will have developed as a result of this critical technical breakdown.

We will provide additional information about this troublesome development as soon as it becomes available.

USCIS Issues Guidance on When to File an Amended H-1B Petition

In the wake of a precedent decision issued on April 9 by the Administrative Appeals Office of U.S. Citizenship and Immigration Services (USCIS), the agency has issued new guidance which requires employers to file amended H- 1B petitions whenever an H-1B employee moves to a new location outside of the geographic area covered on the Labor Condition Application (LCA). According to the guidance, an H-1B employer must now obtain a new LCA from the Department of Labor and file an amended H-1B petition before relocating an H-1B employee outside of the Metropolitan Statistical Area (MSA) listed on the LCA. Employers will have until August 19 to file amended petitions for H-1B employees who had already moved (prior to the issuance of USCIS guidance) to new worksites without filing an amended H-1B.

Note that an amendment is not required when the H-1B employee moves to a worksite within the same MSA listed on the LCA already on file with USCIS (for example, a move from Manhattan to Brooklyn would not require an amended filing). Please also note that amended filings are not required for short-term placements (not exceeding 30 days or, in some circumstances, 60 days). Finally, keep in mind that in those instances where an amended filing is required, the H-1B employee can immediately begin work at the new location upon filing. You do not have to wait for a final decision on the amended petition for your H-1B employee to start work at the new location.

Senate Judiciary Committee Leaders Introduce Legislation to Reform the EB-5 Regional Center Program

Earlier this month, Senate Judiciary Committee Chairman Chuck Grassley (R-IA) and Ranking Member Patrick Leahy (D-VT) introduced legislation to reauthorize and reform the EB-5 Regional Center program. As explained in our Overview, USCIS allots 10,000 EB-5 immigrant visas each fiscal year to individuals seeking permanent residence on the basis of their investment in a new commercial enterprise. Permanent resident status is available to one who has invested -- or is actively in the process of investing -- at least $1,000,000 (or $500,000 if in a Targeted Employment Area (TEA), defined as either a rural area or a high-unemployment urban area) in such an enterprise. The investor must also demonstrate that the investment will create or preserve at least 10 full-time jobs. USCIS also gives EB-5 investors the option of investing with an economic entity known as a Regional Center. Regional Centers, which number over 500 nationwide, are pre-approved for EB-5 investments by USCIS -- which means USCIS recognizes the economic entity as a designated participant in the EB-5 Program, and acknowledges that its econometric models and business plans appear to be feasible and that jobs should be directly or indirectly created through investment in the approved industry categories.

In an effort to tighten federal oversight of these Regional Centers, Senators Grassley and Leahy introduced the American Job Creation and Investment Promotion Reform Act. The Act would, in part, require increased disclosures by Regional Centers to investors regarding business risks and conflicts of interest, and their compliance with securities laws. The Act would also narrow the definition of a TEA; would require investors to demonstrate the creation of direct jobs through their investment in a Regional Center (rather than only indirect jobs); and would raise the investment threshold to $800,000 (for TEAs) and $1.2 million (for non-TEAs).