The U.S. Second Circuit Court of Appeals published its decision allowing the Department of Human Services (DHS) to recommence the implementation of the Public Charge Ground of Inadmissibility final rule on September 11, 2020. According to an alert from United States Citizenship and Immigration Services (USCIS), the decision stays the injunction, which was issued in late July 2020, that prevented the public charge final rule from being enforced during a national health crisis (the COVID-19 pandemic).
The final rule is legislation that outlines requirements pertaining to grounds of immigrant inadmissibility based on current or projected status as a public charge. Because the EB-5 program is designed as a path into the United States for qualified immigrant investors – some of whom do have an opportunity to use public services – it is imperative to understand how this decision can affect them.
In this article, you will learn what the U.S. government deems a public charge, which government benefits are included in the public charge final rule, how it can impact their form I-485 adjudication, and ultimately what it means for their EB-5 investment processing.
Determining Whether an Immigrant Will Be a Public Charge
The Immigration and Nationality Act (INA) says that when an immigrant seeks admission into the United States (or to adjust their status to lawful permanent residence), they may be deemed inadmissible if “at the time of application for admission or adjustment of status, [they are] likely at any time to become a public charge.” This translates to a denial of admission or of their petition for adjustment in status. So who, then, is considered a public charge according to the final rule?
Public Benefits Outlined by the INA
When an immigrant is evaluated as someone who is more likely than not to receive one or more of a specifically outlined set of public benefits at any time in the future for more than 12 months in a three-year period, they would be classified as inadmissible. Generally speaking, the public benefits included under this rule are as follows:
- Income maintenance from federal, state, local, or tribal programs issuing cash benefits
- Public housing
- Medicaid benefits
- Section 8 housing or rental benefits
- SNAP benefits (the Supplemental Nutrition Assistance Program)
- Supplemental security income
- Temporary assistance for needy families
There are two types of applicants most often included: those seeking admission or adjustment of status to lawful permanent residence and non-immigrants who would like to either extend their non-immigrant stay or change their nonimmigrant status in some way.
None of the above-outlined considerations alone will make any immigrant inadmissible other than not providing a sufficient affidavit of support. If you have questions regarding whether a particular set of government benefits are considered applicable to the new legislation, reach out to an experienced EB5 attorney for answers. In the meantime, read on for other considerations adjudicators make when determining whether an immigrant may or may not need to access these benefits in a significant way.
Factors in Determining the Likelihood of Becoming a Public Charge
The factors considered during the adjudication process run the gamut of an immigrant’s circumstances. Here are the most common:
- An applicant’s age and general health
- Their family status
- The assets, financial situation, and access to resources they have
- Their educational background and skillsets
- What their prospective immigration status is and the expected period of admission
- A sufficient affidavit of support
Foreign investors in the EB-5 program (and their qualified family members) who are nearing the end of their investment term sometimes fall under the category of those seeking to adjust their immigration status. Form I-485 and Form I-829 are the specific petitions most likely to be affected by the 2nd Circuit decision, as they are an EB-5 investor’s applications to a) adjust their status from non-immigrant to conditional immigrant status and then b) remove those conditions.
The following is a quick refresher on EB5 program basics, an explanation on when Form I-485 comes into play, and how delays in I-485 processing affect I-829 petitions.
EB-5 Investor Basics and When Form I-485 Comes into Play
The EB-5 Immigrant Investor Program is a pathway to an employment-based visa in the United States. It was created by Congress, was enacted in the 1990s, and is still administered today by USCIS. It was developed as an effort to stimulate the U.S. economy and designed to provide green cards and a path to citizenship to qualified foreign investors. Immigrant investors who are able to infuse lawfully obtained foreign capital into EB-5 program-approved projects around the country in a way that meets all program requirements, especially job creation, can obtain green cards for themselves and their immediate family members.
To gain U.S. permanent resident status through the EB5 program, foreign nationals must meet the following minimum requirements:
- Invest a minimum of $1.8M in a new commercial enterprise, or a reduced amount of $900K if the project is in a designated TEA (targeted employment area).
- This capital must prove it has effectively created a minimum of 10 new and sustainable full-time jobs for U.S. workers.
- All project funding must have been lawfully sourced (and proven as such), and the capital is required to remain “at risk” throughout the investment period.
Although this path to a U.S. green card is straightforward and quicker than most other available options, each part of the investment process has its own set of requirements and can be quite complex. Putting together an I-526 petition—the first petition an EB5 investor files—can be complicated and time-consuming, especially in regard to the source-of-funds requirement. In a later-stage example, when an investment period is extended beyond an investor’s funding terms, often it is most beneficial for them to redeploy their capital in order to maintain the required at-risk status.
Partnering with an experienced EB-5 attorney and using available resources, like the EB5AN TEA map or the EB-5 Project Risk Assessment Questionnaire, can greatly improve an investor’s experience and help them manage the expectations of qualifying family members along the way.
Regarding the recent court decision, there are seven basic steps in the EB-5 process, and the 2nd Circuit Court’s stay is most likely to affect foreign investors in the later stages of EB-5 processing. Specifically, investors who have met all of their investment requirements and have sought to update their status through USCIS form I-485 may have experienced a denial between July 2020 and now. Learn more below.
USCIS Form I-485: An Overview
Via Form I-485, EB-5 participants who are already in the United States can petition USCIS to update their immigration status to a conditional permanent resident. Only after an applicant’s I-526 petition is approved may they file an I-485 petition for this adjustment in status. Questions on the application pertain to biographical information USCIS will use to determine whether an applicant is eligible for permanent residency, and it is typically filed by the applicant’s EB-5 attorney.
Information Included in the I-485 Petition
Information requested can include but is not limited to:
- All biographic details as required by Form G-325A
- Biometric service documents like fingerprints, photograph, and signature
- Copies of passport pages and all documents showing U.S. status has been maintained
- Criminal history
- Evidence of the approval received for their I-526 petition (Form I-797C)
- Familial certificates including birth, marriage, and divorce certificates
- Medical exams and vaccination records
Fees to Accompany Form I-485
An investor must also include application and biometric requirements fees with their Form I-485 submission. Note that when an applicant is age 78 or older, the biometric fee is waived. Additionally, USCIS application fees were set to change in early October 2020. As of this writing, a judge has imposed a temporary delay on the fee change, but that could change at any time. The current application fee for I-485 petitions is $1,140 per submission, but under the new rules, that fee would be reduced by $10. Depending upon an EB-5 participant’s current address, the application will be mailed to the lockbox facility for USCIS in either Texas or Arizona.
Estimated Processing Times on I-485 Petitions
Adjusting your residency status in the United States is a big step, and not just philosophically. The wait can be long (and difficult), as well. Form I-485 processing times vary significantly based on factors such as proper filing and documentation and USCIS’s caseload in a given area. That said, here is a brief outline of the typical waiting period for each step after filing a Form I-485:
- 2 TO 3 WEEKS: Notice from USCIS confirming the receipt of an application
- 3 TO 5 WEEKS: USCIS notice assigning the biometrics appointment
- 5 TO 8 WEEKS: The biometrics screening appointment (not the interview)
- 12 TO 16 WEEKS: Petitioner receives their EAD card, if applicable
- 4 TO 10 MONTHS: Notice from USCIS to attend an adjustment-of-status interview
- 6 TO 12 MONTHS: The adjustment-of-status interview
During an EB5 investor’s adjustment-of-status interview, one of the considerations made is whether there is any likelihood that they will become a public charge. If there is a concern, the I-485 petition may be denied.
Otherwise, between 8 and 12 months, when USCIS determines an applicant eligible, they are granted permanent residence. In the case of EB-5 investors, two years after securing conditional permanent resident status (if they have met all pertinent program requirements), they must file an I-829 petition to have those conditions removed.
If you are an EB-5 investor who has been impacted by this recent legislation and has ultimately had an I-485 petition denied, here’s how an attorney can help.