USCIS Updates EB-5 Case Processing Time Estimates

USCIS Updates EB-5 Case Processing Time Estimates

The U.S. Citizenship and Immigration Services (USCIS) announced last week changes to streamline how the agency communicates case processing times. The agency said the changes are intended to make less difficult the ability to get an immediate answer on when individuals can make an inquiry about their case.

USCIS Director Ur M. Jaddou said in a statement that the agency is committed to listening to applicants and stakeholders and working to improve services to improve clarity and transparency of USCIS data.

“In the EB-5 realm where processing times are outrageous, this doesn’t help, it just confirms what we know, that USCIS adjudications take too long, are often incompetent and worse in the EB realm are designed to kill the program,” says Tammy Fox-Isicoff, Rifkin & Fox-Isicoff PA.

How do USCIS calculate EB-5 processing times

Posted processing times provide information to understand processing times for various forms. Times are defined as the number of months from the date USCIS receives an application, petition, or request and the date the agency issues a decision. Estimated processing time is based on the length of time the USCIS took to approve or deny a certain percentile of completed cases over the prior six-month period. Individuals will be able to find the processing time information for their case type.

“USCIS says that most I-526 cases are adjudicated in 46.5 months. This is much more than the lower limit of 24 months that we were seeing prior to COVID,” says Poorvi Chothani, the managing partner of LawQuest an immigration firm headquartered in Mumbai, India.

Chothani says it’s hard to say whether the processing times for I-526 are happening in reality since her clients have invested in the regional center program and processing has been significantly delayed during the pandemic and suspended when the program sunset in June 2021. Many have suggested that processing times did not speed up during the regional center lapse.

EB-5 processing time changes implemented by USCIS

Other changes by USCIS include the addition of drop-down menus for form categories that show processing times just for that case, case inquiry tools that allow users to insert their receipt date and get an immediate response on whether the agency should be contacted with questions about the case and then provided a link to submit a case inquiry online. Other changes include showing a single 80th percentile processing time instead of a range to help estimate the length of time USCIS will take to process a benefit request.

Suzanne Lazicki, Lucid Professional Writing, says the agency “is undertaking a commendable effort” to improve on and simplify the way it communicates and presents case processing time data. But she says more can be done.

“The USCIS processing times report has been and remains unhelpful and confusing, because it provides arbitrary data points, sets an unreasonable standard for “normal” processing, and presents data that is “not predictive” for use in predictions and estimates,” says Lazicki.

The agency said it will also revise, streamline and add more content to the webpages on processing times, such as a FAQ page and improved More Information page.

“Once we can trust the new system and it proves its promised features, it will help clients make informed decisions that they can rely on. At present clients are very often turned off by the vague and unreliable data that is available,” says Chothani.

-By Anayat Durrani

Inheritance Planning: The Differences Between US beneficiary & Indian Nominee Rights

Inheritance Planning: The differences between US beneficiary & Indian nominee rights

By Poorvi Chothani, Sujatha Krishnaswamy, RoopaDoraswamy, Sushma Nagaraj, Rekha Rao & Priya Gidwani
Certain persons of Indian descent, their progeny and spouses could qualify to register as Overseas Citizens of India giving them permanent residence rights among other things.

Similarly in the United States, qualified individuals may acquire lawful permanent status in many ways including via employment or through family connections. Lawful permanent residents are popularly known as green card holders. Inheritance laws apply equally to citizens and permanent residents in these two countries.

Recently, a few of us (accounting and legal professionals) from both India and the US, were researching inheritance planning issues related to “Overseas Citizens of India” and discovered significant differences in the United States and India when it comes to the succession of bank accounts from a deceased account holder to his or her ultimate beneficiaries. We will discuss these differences in this article as they apply to citizens and permanent residents.

On the US side:
Probate vs. Non-probate accounts: In the US, an account can be a probate asset or a non-probate asset, depending on how it is set up. 

A probate account is an account owned in the sole name of the individual account holder, with no beneficiary designation(s) attached to it. Upon death, the probate account goes through the probate process, which is the legal route by which these accounts make their way through the Last Will & Testament (“Will”) of the deceased account holder (“decedent”) over to the beneficiaries named in the Will. Where there is no Will, the account has to pass through the intestacy laws of the State in which the decedent resided and the beneficiaries (or heirs) of the decedent are determined by State law. In either case, the probate process involves court supervision or oversight.

By contrast, if the account is non-probate, then it does not go through the same channels and instead the account passes directly to the beneficiary or beneficiaries by operation of law, by contract or by trust. Joint accounts, or accounts with a “Transfer on Death or TOD” beneficiary or a “Payable on Death or POD” beneficiary, life insurance policies or retirement accounts with beneficiary designations or assets inside of a Revocable or Irrevocable trust, are all considered non-probate assets. Except in limited circumstances (typically in matters of public policy, state law etc.), once an individual is named as a beneficiary of an account or is joint account holder with another, this individual becomes the legal owner of the account and inherits the account automatically – outside of the court system.

Therefore, in the US, upon on the death of an individual, things are relatively straightforward (especially if there is a Will in place). All probate assets in the name of the decedent pass into an estate account that is set up by the Executor named in the Will. To open the estate account, the Executor will need to appear at his or her bank of choice armed with a Death Certificate, photo ID, a Tax Identification Number or TIN# (in lieu of the decedent’s Social Security Number for taxes), and a Letters Testamentary (or Appointment Letter) procured from the Court. Similarly, if there was no Will, the same process is followed except that the individual stepping forward to serve – now called the Administrator – has to post a bond to secure the estate assets (as an insurance for the ultimate beneficiaries) before he or she can obtain the Letters of Administration from the Court.

It is pertinent to note that in either case, Courts as well as the banks do not proceed without first obtaining proper documentation from the individual stepping forward to serve and banks will likely be subject to liability if they fail to obtain the necessary documentation. More importantly, it is unheard of for banks and other institutions to transfer probate assets of a decedent directly to an account belonging to the Executor/Administrator. These accounts must be transferred to the estate account of the decedent and held there until the estate administration formalities are completed, including payment of any taxes/debts or other obligations of the estate, before money passes to the beneficiaries.

On the India side: 
A bank/financial account can be held individually or jointly. Joint accounts can be held: ‘either or survivor’, ‘anyone or survivor’ or ‘former or survivor.’ Account holders are also often referred to as First Holder and Second Holder where if the first holder dies, the second holder automatically receives the beneficial interest in the account. However, all accounts (including those that are individually owned) can have nominee designations. Unlike the US where a nominee designation would be treated as a beneficiary designation, the person named as the nominee receives payment from the bank only “as a trustee of the legal heirs of the deceased depositor, i.e. such payment to him shall not affect the right or claim which any person may have against the survivor(s)/nominee to whom the payment is made.”

So here is where things can get quite tricky, and often messy, when the nominee designations don’t match up to either the beneficiaries listed under the Will or, the account holder dies intestate i.e., where there is no Will, when the nominee designations do not reflect the lawful heirs of the estate.

Let’s start with what a bank is instructed to do – in an effort to alleviate the “tortuous procedures …[that] caused considerable distress” to family members upon the death of a deceased account holder, the RBI or Reserve Bank of India issued a circular stating that where accounts have a valid nomination, the bank has to follow a 3-step protocol, before paying out the balance directly to the survivor(s)/nominee, with full discharge of any liability against the bank for making such payments.

The three steps outlined were that the bank:  

  1. exercise due care and caution as to the identity of the survivor(s)/nominee and valid proof of demise of the accountholder;
  2. make sure that there was no court order restricting the Bank/institution from making such payment;
  3. makes it clear to survivor(s)/nominee that payment is being made to him or her only as a trustee of the funds and that valid beneficiaries to the funds could have a claim against the survivor(s)/nominee.
     

But interestingly, there is also some indication to suggest that if banks insists that the survivor(s)/nominee produce legal documentation like the succession certification, Letter of administration or probate etc., or ask for him or her to obtain a bond, that would actually “invite serious supervisory disapproval”. Where there are no nominee designations, the bank is “advised to adopt a simplified procedure for prepayment to legal heir(s)…keeping in view the imperative need to avoid inconvenience and undue hardship to the common person.”

It follows that if the nominee designation does not match the Will of the succession rights of the beneficiary, then the legal heir’s only option is to fight it out in court. In an article on the subject, S.S, Rana & Company cite Supreme Court cases where the Court has held that the nominee is only a custodian of the account5.

Moreover, Section 72 of the Companies Act, 2013, states that while the nominee shall become entitled to all the rights in the shares and debentures of the company immediately upon the death of the shareholder, the rightful ownership of shares remains with the legal heir and not the nominees6.

Courts in India have time and again reiterated that the legal heir is the ultimate, rightful owner of the property of a deceased individual, a nominee (pursuant to a nomination given by the deceased during his / her lifetime) would act only as a trustee on behalf of the rightful legal heir(s), and hold such property until the matter of succession or inheritance is decided and implemented. Even in the case of a minor being a nominee and not a legal heir, the natural or legal guardian acting on behalf of such minor nominee has to act as Trustee on behalf of the legal heirs.

Complexities increase where there is no testamentary instrument, and the personal law of the decedent provides a certain set of rules/guidelines for devolution of the estate on the legal heirs. For example, in the case of a Hindu male, Class 1 heirs (mother, children, grandson of his predeceased son and so on) who get priority over his assets, leave out the father, who is not considered an immediate legal heir and therefore has no right to his son’s assets.

Some exceptions to the above are in the case of life insurance or Relief/Savings Bonds where the nominee is also considered the beneficial owner and therefore entitled to the proceeds of the policy or the bonds.

Solution for both countries –
It is imperative for anyone with assets located both in India and overseas to execute a well thought succession plan. One must aim at erasing confusion over the nominees and his/or legatees/beneficiaries. One must not only consider setting up a Will (in all countries where applicable) clearly delineating the various beneficiaries under the Will but also to methodically and systematically go through every single account and align nominee designations in accordance with the Will. Nomination and Will must be in harmony.

Those who are US citizens/residents should understand the contrasts that exist in the two countries where a beneficiary designation trumps the Will in almost every case in the United States whereas it follows a completely different treatment in India. The easiest way to ensure a smooth and a seamless transition to your loved ones in India, is to ensure that the nominee designations mirror your intention, irrespective of a Will being made, listing the true and intended beneficiary of the account.
 

About the Authors
Poorvi Chothani is the founder and managing partner of LawQuest
Sujatha R. Krishnaswamy is the co-founder of Crestworth Management Partners
Roopa P. Doraswamy is a co-founder at Flywork Innovations
Sushma Nagaraj is a practicing lawyer in India
Rekha V. Rao is the principal and founding member of Rao Legal Group, LLC
Priya Gidwani is the CFO and founding member of Rainmaker

 

Providing Perspective on Potential Solutions to U.S. Visa Backlogs. Too Soon to Raise Your Hopes!

Providing perspective on potential solutions to U.S. visa backlogs. Too soon to raise your hopes!

A US presidential advisory commission has voted to streamline the green card process, which, if implemented, will hugely reduce wait times for Indian applicants. The President’s Advisory Commission on Asian Americans, Native Hawaiians, and Pacific Islanders (PACAANHPI) has voted to reduce green card processing time to six months – currently, Indians face wait times of over a decade for their permanent residence permit. These recommendations will be sent to President Joe Biden, who may then implement them through an executive order.

“These are recommendations and will require government action and/or agency policy changes to have an impact,” said Poorvi Chothani, managing partner at LawQuest, an immigration law firm. “If it does gain traction and even if a few changes are implemented it would benefit Indians who are in the green card queue.”

The Immigration and Citizenship Sub-committee approved a set of recommendations which are now to be presented for further approval. One of these is a recommendation to reduce internal processing times for family green card applications. Indian applicants face the highest wait times on account of the annual country cap and the high number of applicants.

Others include reducing the visa backlog by expanding staffing and modernizing processes at the US Citizenship and Immigration Services (USCIS) to reduce wait times, expanding premium processing services, providing automatic work permit renewals and quickly processing work permits and other immigration applications.

It also recommends that the USCIS and Department of State issue new public charge policies that support Asian American and Native Hawaiians and Pacific Islander immigrant families accessing health and well-being supports, and partner with other federal agencies and community organizations to engage in outreach to these communities.

US steps up visa processing, with special focus on students

US steps up visa processing, with special focus on students

On May 11, Don Heflin, Minister Counselor for Consular Affairs at the U.S. Embassy in New Delhi went live on Instagram and Facebook to provide an update on visa services with a special focus on students. This is a summary of the information shared with the audience.

The Minister started out by saying that the summertime is all about visas and that they had made special arrangements for student visas. He confirmed that they had issued a record 62,000 student visas last year and expected to break that record this year. In fact, they expect to issue more student (F, M and Js including dependents) visas than ever before.

Capacity Building:

When addressing questions about return to “normal” levels of service the Minister indicated that this year they expect to be a 2/3rd of their pre-COVID capacity and hope to reach 100% of this by the end of 2023. To increase capacity, Mission India is recruiting more officers in addition to training existing staff members etc. They recently added five more visa officers at their Consulate in Mumbai.

• A large number of student visa appointments will be rolled out in the ensuing months starting next week.

• Students currently in the U.S. will get Dropbox appointments easily as they will open more appointments for them.

• Between August 15 – September 1 they will open up 15,000 slots for students with past refusals. Students who receive their I-20s later than expected could also avail of these appointments.

• Parents who have visas or are eligible for a Dropbox appointment could travel to the U.S. with their student children.

• Appointments for first time B-2 visa applicants or for those who do not qualify for Dropbox (collectively call new applicants here) appointments may avail of appointments that will be added to the system in late August or early September. They will release a large number of appointments from this period through Spring 2023 for new visa applicants.

Pitfalls and Tips:

• Check for visa appointments multiple times a day but if you “refresh” the portal frequently you may be locked out of the system for 72 hours.

• Applicants are advised to be prepared to “tell their story” during the visa interview, which should be similar to an elevator pitch as visa interviews usually last for a couple of minutes or so.

• Applicants should be able to convey to the officer why a particular course, or level of education makes sense to the applicant’s career goal. Be ready to explain how the intended education fits in with your life. This becomes more important when an applicant is changing academic tracks or pursuing a second degree at the same level of an existing one.

• Applicants should carry all their financial documents to the interview but officers at Mission India generally do not focus on abilit to pay for the course as Indian parents almost always find ways to pay for the education and stay.

• Neither English language tests nor high levels of proficiency in the language are prerequisites for an interview. However, an applicant who is not proficient in English may find it difficult during the interview to justify bonafide intent to study.

• Applicants may use agents to procure visa appointments and help with the application but this could be risky as the agent’s errors or misrepresentations would be attributed to the applicant and could affect visa adjudication.

• Applicants who get 221(g) notices must take the action required in the notice without any delay. This helps the officers quickly make decisions.

• Third country nationals may apply in India, but it is best to apply in the country where one resides.

• A visa can be issued only within 120 days before a student’s course start day. One could apply before that, but the case will be kept pending under 221(g) and the applicant will be asked to send in the passport at a later date.

• It helps for the applicant to be confident and articulate at the visa interview. Canned answers do not help but sharing a personal story that influenced the choice of the institute would help.

• Dropbox applications are generally processed within seven days after the Dropbox appointment.

• Even if the education institute has waived any test, it would be best to take it as a good score would be an advantage in the interview.

Ready to fly again: Travel firms expect heavy rush as US lifts curbs

Travel companies are expecting a heavy rush to the US following the withdrawal of curbs on fully vaccinated travellers from select countries, including India, on November 8.

The move will benefit those holding long-term tourist, business, and work visas. Also, new and extra flights by Air India and American Airlines are expected to provide better travel options.

Visa appointments (for fresh applicants) have been curtailed as part of local Covid-19 measures and there is no clarity yet on their normalisation.

“The US update on acceptance of fully vaccinated Indians without quarantine from November 8 is a welcome development for our business travellers and also the family and leisure segments. Flight capacity is currently limited to flights under the air travel bubble.

Fares that are already over 60 per cent higher than pre-pandemic levels may well see a further surge,” said Indiver Rastogi, president and group head (global business travel), Thomas Cook India.

Return economy class fares for non-stop flights on the Delhi-Newark/New York route for travel between November 10 and December 30 are priced Rs 90,000-Rs 120,000. On certain dates, though, return tickets are a bit cheaper around Rs 70,000.

On Friday, the White House announced the lifting of Covid restrictions for vaccinated travellers from 33 countries, making it easier for those flying between the two countries.

Those inoculated with FDA or WHO-approved Covid-19 vaccines would be accepted. The Joe Biden administration would separately issue orders and guidance documents to implement the new travel policy.

Travel restrictions for Indians came into effect on May 4 when the country was grappling with the second wave of the Covid pandemic.

Those restrictions meant that tourist or business visa-holders had to spend 14 days outside India in order to gain entry into the US. But the curbs did not apply to US citizens and permanent residents, among others. Students whose classes began after August 1 were allowed direct entry.

While traditionally November-December is the peak season for India travel from the US, this year there can be a rush on the outbound flights, too.

“International travel will gain momentum with the decline in daily Covid-19 cases across the country and the easing of travel norms by leading global destinations, including the US. Fares will be higher in the initial few days. We expect their rationalisation after a week or so,” said a spokesperson of Yatra.com.

Prashant Pitti, co-founder of EaseMyTrip, said: “There is a jump of nearly 50 per cent in demand for US flights and we are hopeful that more routes and options will be available soon. There had been a significant jump in airfares in the recent past and as of now, rates have stabilised. We hope this trend continues as we expect more flight options.”

At present Air India and United Airlines operate non-stop flights to the US from Mumbai and Delhi. From November 3, Air India is increasing frequency on the Delhi-Chicago route from six to seven per week. American Airlines is launching new services between New York and Delhi from October 31 and between Seattle and Bengaluru from January 4.

“The US government decision to lift the travel restrictions is a positive development and now it must be followed up by increasing visa services in India. Visa appointments have been restricted due to local Covid-19 measures and staffing issues within the US Department of State, among others. This has impacted applicants of tourist, business, and work visas,” said Poorvi Chothani, managing partner of LawQuest, an immigration law firm.

“New H-1B visas have been issued to those who qualify under the National Interest Exception policy. However, there are thousands of individuals who are approved and eligible to apply for H-1B visas and have been unable to join their new jobs in the US. Enhanced visa services in India are crucial to enable people to travel to the US,” she added.

 

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