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February 9 2017

Executive Order Impact on EB-5

Until the Supreme Court says otherwise, foreign nationals from Iran, Iraq, Syria, Libya, Somalia, Sudan, and Yemen with permanent resident green cards should be admitted to the U.S., but may be subject to extensive questioning and delay upon entering the U.S. 

Other valid visa holders, such as foreign students, are still being admitted while the Temporary Restraining Order (“TRO”) issued by a federal judge in Washington is still in place. The Trump Administration is trying to appeal that order and the Ninth Circuit Court of Appeals heard oral arguments on Tuesday, February 8.

Estimates show that prior to the TRO being issued, the government had revoked more than 60,000 visas for people from the 7 countries. When the TRO was issued on Friday, the revocation was rescinded. If Trump wins at the Supreme Court and the visas again become revoked, the revocation of an immigrant visa such as an EB-5 should in no way affect individuals who already have arrived in the U.S. and have conditional or full permanent residence (green card status).

As it appears today, temporary visa holders, such as students, who remain in the United States would still be in status if their visas are revoked by the Department of State.

Holders of current and valid nonimmigrant visas, such as a student F-1 visa holder, need not maintain a valid nonimmigrant visa stamp in his or her passport while in the U.S. However, they must maintain their status which is governed by their I-94 form issued upon admission into the United States. The expiration of the nonimmigrant passport visa stamp does not render an individual out of status. However, to be readmitted to the U.S., a valid passport visa stamp is required.

Pursuant to the TRO, the USCIS issued a statement that it will continue to decide applications which will include investor applications such as EB-5 526s and 829s. This includes applications for adjustment of status for those in the U.S. seeking to change status to permanent resident status, such as a student from F-1 to EB-5.  But if Trump wins at the Supreme Court, immigrant visas at the consul will be frozen for 90 days and possibly longer until “extreme vetting” of immigrants is in place.

This is obviously a fluid situation and seems to be changing almost daily. It will be interesting to see what the Ninth Circuit and the Supreme Court will do with the TRO. The brief to the 9th Circuit was supported by declarations from many foreign policy experts (former Secretaries of State Kerry and Albright, among others) stating there is no terrorist threat and this is an illegal religious-based exclusion. In today’s jargon, this is a fake crisis created by the Trump administration. Sad, incompetent, and inhumane.