How To Avoid EB5 Denial?

Investment Vis is not foreign to foreign investors anymore. Investors are often led to invest in projects under companies designated by USCIS as regional centers who claim to be able to create 10 jobs for each investors. 

Many investors act upon leap of faith based on the facts the representative of the projects looks great, or so and so are approved. 

USCIS EB5 statistics shows that out of 13795 EB5 application since 2005, 81% were approved for conditioned green card, 68.4% were approved for permanent green card, which is 2887 families. The number is certainly not high enough based on the promises made by the projects. Obviously, the investors are not warned enough, instead, are mostly rushed into making decisions. 

The question is what caused the failure. The answer is multiple fold. The article will address a few most common possibilities, but does not promise the entire coverage of issues. 

First, it is under-stated by the greatest extent that a business is designated as a regional center by USCIS does not mean that USCIS has endorsed the project and has made a promise of green card to investors of such project. Instead, approval of a EB5 regional center is simply an approval on investment plan submitted by business owners to USCIS. 

Many project owners made vague or misleading presentation that the projects are partially owned by government. Even it may be true in some, it is not true in most. Most project owners are simply entrepreneurs who have experience to put all sources together. As a matter of fact, any claim that the project is 100% backed by government funds should raise first red flag. 

Secondly, it is possible that the project owners are running shams. As a matter of facts, some have already been caught.  The SEC and USCIS are aware of attempts to misuse the EB-5 program as a means to carry out fraudulent securities offerings.

SEC v. Marco A. Ramirez, et al., the SEC and USCIS alleged the USA Now regional center falsely promised investors a 5% return on their investment and an opportunity to obtain an EB-5 visa. The promoters allegedly started soliciting investors before USCIS had designated the business as a regional center. The SEC alleged that while the defendants told investors their money would be held in escrow until USCIS approved the business as eligible for EB-5, the defendants misused investor funds for personal purpose such as funding their Cajun-themed restaurant. 

SEC v. A Chicago Convention Center, et al., is another case which the SEC and USCIS coordinated to halt an alleged $156 million investment fraud. The SEC alleged that an individual and his companies used false and misleading information to solicit investors in the “World’s First Zero Carbon Emission Platinum LEED certified” hotel and conference center in Chicago, falsely claimed that the business had acquired all necessary building permits and that the project was backed by several major hotel chains. According to the SEC’s complaint, the defendants promised investors that they would get back any administrative fees they paid for their investments if their EB-5 visa applications were denied.  The defendants allegedly spent more than 90 percent of the administrative fees, including some for personal use, before USCIS adjudicated the visa applications.

As with any investment, it is important to research thoroughly any offering that purports to be affiliated with EB-5.

We will talk about other reasons for possible denials of EB5 application in blogs that follows. 

EB-5项目向外国投资者提供了以在美国投资并创造就业机会为前提而获得合法永久居留权的机会。商业业主向移民局申请被指定为EB-5项目“区域中心”。然而，通过EB-5投资的外国投资者，不能保证签证或成为美国合法永久居民。

事实上，一个企业是由美国移民局指定的区域中心并不意味着移民局，美国证券交易委员会或任何其他政府机构已批准由企业提供的投资，或以其他方式表达了对投资质量的首肯。相反， 美国证券交易委员会和移民局只是认可项目的商业计划符合了法律的规定而且意识到EB-5项目会（已）被作为进行欺诈性证券发售的手段。

在最近的一个案例中，SEC诉马哥A.拉米雷斯等人，美国证券交易委员会和美国移民局曾共同制止涉嫌投资诈骗，美国证券交易委员会述称，被告，包括USA Now区域中心虚假承诺投资者5％的回报，并有机会获得EB-5签证。据称，发起人在美国移民局已指定作为一个区域中心前开始征求投资者。 SEC指控，被告告诉投资者，他们的钱将被托管持有，直到移民局批准投资者的临时绿卡。 但事实上， 他们却将投资者资金挪用投资者资金到个人的印第安主题餐厅，如个人使用，被告滥用投资者的资金。根据美国证券交易委员会的投诉，投资者没有通过投资USA Now区域中心作为得到临时绿卡。 

在另一起案件中，SEC诉芝加哥会议中心等，美国证券交易委员会和美国移民局共同制止据称价值156万美元的投资欺诈。 SEC的指控，一个个人和他的公司使用虚假和误导性的信息吸引投资者投资于芝加哥“世界第一零碳排放白金LEED认证的”酒店和会议中心。 SEC指出他们虚假声称，企业已经获得了所有必要的建设许可证和，而且该项目是由几个主要的连锁酒店支持。据美国证券交易委员会的投诉，被告向投资者承诺，如果他们的EB-5签证申请被拒绝， 他们将拿回他们支付他们的投资和任何行政事业性收费。据称被告事实上在美国移民局审理的签证申请前已将超过90％的行政事业性收费用于个人。 

与任何投资一样，对EB5 项目进行深入细致地研究非常重要。具体如何判断EB5中心的合法性和真实性， 请和本所联系（954 892 5517）或者等下期分析。  

EB5 Projects Possible Scams

EB5 program enables foreign Investors to obtain conditioned green card via investment in designated regional center who creates 10 direct and indirect jobs for each investor based on a feasible business plan.  Conditions can be removed if actual 10 jobs are created using the investment. Worthy of note though, foreign investors who invest through EB-5 are not guaranteed a visa or to become lawful permanent residents of the United States.

The fact that a business is designated as a regional center by USCIS does not mean that USCIS has endorsed the project and has made a promise of green card to investors of such project. Instead, approval of a EB5 regional center is simply an approval on investment plan submitted by business owners to USCIS. As a matter of fact, the SEC and USCIS are aware of attempts to misuse the EB-5 program as a means to carry out fraudulent securities offerings.

,SEC v. Marco A. Ramirez, et al., the SEC and USCIS alleged the USA Now regional center falsely promised investors a 5% return on their investment and an opportunity to obtain an EB-5 visa. The promoters allegedly started soliciting investors before USCIS had designated the business as a regional center. The SEC alleged that while the defendants told investors their money would be held in escrow until USCIS approved the business as eligible for EB-5, the defendants misused investor funds for personal purpose such as funding their Cajun-themed restaurant.

SEC v. A Chicago Convention Center, et al., is another case which the SEC and USCIS coordinated to halt an alleged $156 million investment fraud. The SEC alleged that an individual and his companies used false and misleading information to solicit investors in the “World’s First Zero Carbon Emission Platinum LEED certified” hotel and conference center in Chicago, falsely claimed that the business had acquired all necessary building permits and that the project was backed by several major hotel chains. According to the SEC’s complaint, the defendants promised investors that they would get back any administrative fees they paid for their investments if their EB-5 visa applications were denied.  The defendants allegedly spent more than 90 percent of the administrative fees, including some for personal use, before USCIS adjudicated the visa applications.

The El Monte Regional Center story isn't a happy one neither.  El Monte received USCIS approval to raise money for the project via the EB-5 investor visa program. A detailed economic blueprint of the project from 2008 offers a good overview of the city's plan. Unfortunately, things turned sour quickly. In 2009, project executives John Leung and Jean Lang were arrested for alleged fraud and embezzlement.

As with any investment, it is important to research thoroughly any offering that purports to be affiliated with EB-5. You need to contact a trustworthy and capable immigration attorney for assistance in due diligence. You are more than welcome to contact us at 954 892 5517. 

Legal Dictionary

Employment-Based Immigration: First Preference EB-1

Employment-based, first-preference visa are designed to grant to people who have an extraordinary ability, are an outstanding professor or researcher, or are a multinational executive or manager. To be eligible, you must be able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim, or  demonstrate international recognition for your outstanding achievements in a particular academic field, or demonstrate that you have been employed outside the United States in the 3 years preceding the petition for at least 1 year in managerial capacity by a firm or corporation and you must be seeking to enter the United States to continue service to that firm or organization.

National Interest Waiver

Aliens whose proffered job is in the interest of United States may request a waiver for Labor Certification. This visa is called National Interest Waiver.   Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the national.  Those seeking a national interest waiver may self-petition  and may file their labor certification directly with USCIS along with their Form I-140, Petition for Alien Worker.

L1 Visa

The L-1A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States.  This classification also enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one.  

O-1 Visa

The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.

The O nonimmigrant classification is commonly referred to as:

1. O-1A: individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry)
2. O-1B: individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry
3. O-2: individuals who will accompany an O-1, artist or athlete, to assist in a specific event or performance.  For an O-1A, the O-2’s assistance must be an “integral part” of the O-1A’s activity. For an O-1B, the O-2’s assistance must be “essential” to the completion of the O-1B’s production. The O-2 worker has critical skills and experience with the O-1 that cannot be readily performed by a U.S. worker and which are essential to the successful performance of the O-1
4. O-3: individuals who are the spouse or children of O-1’s and O-2’s

Adjustment of Status

The Immigration and Nationality Act (INA) permits the change of an individual's immigration status while in the United States from nonimmigrant or parolee (temporary) to immigrant (permanent) if the individual was inspected and admitted or paroled into the United States and is able to meet all required qualifications for a green card (permanent residence) in a particular category. The common term for a change to permanent status is “adjustment of status.”

Concurrent Filing

Concurrent Filing, which was originally put into effect on July 31, 2002 by the U.S. Citizenship and Immigration Services (USCIS), allows an alien to file a USCIS Form I-485, adjustment of status application, at the same time as a Form I-140, immigration petition, as long as visa numbers are currently available for the alien’s preference category (EB-1, EB-2, EB-3). In the past, the USCIS required an approval of the I-140 petition before it would allow a beneficiary to apply for permanent resident status. The only restriction to the rule of concurrent filing is that a visa number must be immediately available for the category in order to file the I-485 application. 

International Trade Law

International Trade Law is not a specific law. It is a set of law that regulates the global exchange of goods and services. For a long time, most trade agreements were bilateral, meaning between two nations). However, with the growth of global trade, countries have increasingly used multilateral treaties, such as when nations within a particular region sign an international trade agreements. Current examples include the North America Free Trade Agreement (NAFTA) and the South Asia Free Trade Agreement (SAFTA).

The multilateral trade agreement with the most members (signatories) is the General Agreement on Tariffs and Trade (GATT). The GATT comprises several rules on international trade, and is now part of the World Trade Organization (WTO), which is not just an agreement, but is also an international organization.

Commercial Law (Business Law) 

The term commercial law describes a wide body of laws that govern business transactions. The Uniform Commercial Code (UCC), which has been adopted in part by every state in the United States, is the primary authority that governs commercial transactions. The UCC is divided into nine articles, covering a broad spectrum of issues that arise in commercial transactions. These articles govern the following: sales of goods, leases of goods, negotiable instruments, bank deposits, fund transfers, letters of credit, bulk sales, warehouse receipts, bills of lading, investment Securities, and secured transactions.

Asylum

People who have arrived in United States may seek and be granted protection if they can prove that they have suffered persecution or fear that they will suffer persecution due to Race, Religion, Nationality, Membership in a particular social group and Political opinion. If you are eligible for asylum you may be permitted to remain in the United States.

Immigration Through Adoption

I tried to explain Adoption to a friend of mine. After 2 hours of back and forth conversation, she seems to be still in the cloud. Looks like a writing is not avoidable to make this inherently complicated subject clear. 

There are three similar but distinct paths to bringing your adopted child to the United States. Which path your adopted child follows will depend on his or her individual circumstances.

Adopt Overseas and Then Immigrate

You first must hire an individual or entity defined as a home study preparer for Hague Convention cases to complete a home study for a Hague adoption. You then file application with USCIS prior to adopting your child from a country that has implemented the Hague Adoption Convention (Hague). After that,  you finalize your Child in that country or bring the Child to US to finalize the adoption.  Your child will enter the United States either with an IH-3 immigrant visa if you adopted your child in a Hague country or IH-4 immigrant visa if you finalize the adoption in the United States.  

A certificate of citizenship or a green card will be mailed to your residence after your new Child’s admission, which is case specific. 

Non-Hague Process

If you follow the same procedure other than home study to adopt  your child is from a country that has not implemented the Hague Adoption Convention,  your child will enter the United States either with an IR-3 immigrant visa in case that adoption finalized in a non-Hague country and you [and your spouse, if married] saw your child prior to or during the adoption process)  or an IR 4 immigrant visa in the case you finalize the adoption in the United States).

Immediate Relative Process

If you adopt your child in US without petitioning to USCIS, you may file petition for relative. However, in this case, you will have to wait until you have lived with your child for two full years to file this petition.  The two years must be accrued BEFORE you file Form I-130. Also, the adoption must be finalized before your child’s 16th birthday (or 18th birthday if they are a biological sibling of a child you have already adopted or will adopt). Your child will receive an IR-2 immigrant visa if he or she is found eligible.

Rule of Thumb in Proof of EB5 Funding

USCIS’s definition of "capital” for EB-5 purposes excludes “assets acquired, directly or indirectly, by unlawful means (such as criminal activities)” 8 C.F.R. §204.6 (e).  Specifically, 8 C.F.R. §204.6(j)(3) requires either “foreign business registration records”; corporate, partnership and personal tax returns filed within 5 years; “evidence identifying any other source of capital”; or documentation of court judgments or pending court cases.  However, in practice, USCIS requests all of the listed categories of documents and, in most cases, significant additional documentation.

Thus, this is one area of the law where simply following the regulations will not be sufficient.  For instance, in many cases, tax returns may not reflect a level of income commensurate with the investment being made.  In these cases, substantial additional documentation will be required.   It can be especially difficult in countries where full disclosure of revenues and profits on tax returns are uncommon in reality.  Where tax returns are not required to be filed, this should be documented.  Where tax returns are required to be filed but the individual’s tax returns show very little income, the documentation of the source of funds should provide overwhelming evidence to counter the negative implication that comes from a review of the tax returns.  As with other types of cases -- L-1, for example, -- the quantity of documentation required might be greater in suspected high-fraud countries or countries for which the US has national security concerns.

The good news is that it is only necessary to prove where and how the investor obtained the $500,000 or $1,000,000 required to be invested.  It is not necessary to prove where the investor obtained every dollar that he now has or ever had.

In many EB-5 cases, documenting the lawful source of funds can be the most arduous and time consuming part of the process.  A good rule of thumb is that if the attorney can understand, through the documentation, where the money came from, the chances of being able to satisfy USCIS should be greatly enhanced.

Federal Law Recognizes Same Sex Marriage

On June 26, 2013, the Supreme Court of the United States issued a decision in United States v. Windsor. The Court ruled that a provision of the federal Defense of Marriage Act (DOMA), which had denied federal benefits to same-sex partners, is unconstitutional.The implication of this ruling is that same-sex spouses are now entitled to the same treatment under federal law as opposite-sex spouses, one example of which is immigration benefit.  

Although this Windsor ruling is effective immediately as of the date the decision was published, many practical quesitons remain unanswered. 

First, exactly what benefits are covered?  Whether the same sex spouses can be derivatives of employment-base immigration is pending the implementation of the Supreme Court. 

Secondly, when review will start.  From a practical standpoint, relevant federal agencies, including USCIS and the DOS will need time to issue practical guidance to create the procedures necessary to implement this ruling and facilitate the processing of applications by same-sex couples. Before that is done, the officers' hands are tied. 

Overall, although federal agencies have been instructed to accept same-sex filings immediately, same sex applicants should anticipate that confusion on the part of federal authorities due to lack of directive and practical guidance will lead to delays and possible rejections and denials of visa applications. 

Extreme Hardship

Extreme hardship is legal standard for 601 and 212 waiver and refers to,  as the term indicates, abnormal situations. “Extreme hardship” is very vaguely defined as greater than the normal hardship the qualifying relative can be expected to experience if the alien is denied admission. It is important to prove both why the qualifying relative cannot move abroad AND why the qualifying relative cannot simply live in the US without the alien. For instance, It is not enough to say that the qualifying relative will miss the alien’s company as this is considered “normal” hardship, not extreme hardship.

BIA eventually identified five general groups of factors to be taking into account by any reasonable adjudicator making extreme hardship determination. Based on precedent cases, major medical condition of US relative, such as brain tumor, multiple sclerosis, cerebral palsy, or elderly, chronically ill, or disabled US relative makes strong arguments. Others don’t. 

It can’t be stressed enough that it is insufficient to prove that Relative has elderly or sick relatives. You must show the link between the medical condition and the waiver, i.e. you must prove that the elderly or sick person needs the qualifying Relative to remain in the US and, preferably, that the Alien is also needed in the US.

Unlawful Presence and Out of Status

A person begins to accrue unlawful presence in the US if a person remains in the US after his or her I-94 card expires. 

A person is out of status because they haven't maintained the terms of their status. a person can fall out of status if they stop working for the employer who sponsored them for an H-1B.

Unlawful Presence does not necessarily start to a accrue the day a person falls out of status. Those entrants who do not have a date on their I-94, but are instead admitted for the duration of status (primarily students) do not accrue unlawful presence until the USCIS rules that they have fell out of status. 

There are some exceptions to unlawful presence. Consult your attorney to see if you are out of status or have accrued unlawful presence and other legal strategies.  

Unlawful Presence

There are 10 basic grounds of inadmissibility.  These are:

• Health related grounds;
• Criminal grounds;
• Security grounds;
• Public charge grounds;
• Labor certifications;
• Undocumented entry and immigration status violations;
• Documentation requirements;
• Ineligibility for citizenship;
• Previous removal or unlawful presence; and
• Miscellaneous

Since the new law is solely concerning unlawful presence, this article discusses definition of unlawful presence. 

Section 212(a)(9)(B)(ii) of the Immigration and Nationality Act defines unlawful presence as presence “in the United States after the expiration of the period of stay authorized by the Attorney General or [presence] in the United States without being admitted or paroled.  The USCIS has not issued regulations to further define the concept, providing only memoranda on the issue, essentially saying that a person begins accruing unlawful presence when they remain in the US past the expiration date of their I-94.  

Unlawful Presence

There are 10 basic grounds of inadmissibility.  These are:

• Health related grounds;
• Criminal grounds;
• Security grounds;
• Public charge grounds;
• Labor certifications;
• Undocumented entry and immigration status violations;
• Documentation requirements;
• Ineligibility for citizenship;
• Previous removal or unlawful presence; and
• Miscellaneous

Since the new law is solely concerning unlawful presence, this article discusses definition of unlawful presence. 

Section 212(a)(9)(B)(ii) of the Immigration and Nationality Act defines unlawful presence as presence “in the United States after the expiration of the period of stay authorized by the Attorney General or [presence] in the United States without being admitted or paroled.  The USCIS has not issued regulations to further define the concept, providing only memoranda on the issue, essentially saying that a person begins accruing unlawful presence when they remain in the US past the expiration date of their I-94.  

Provisional Waiver--新的豁免申请程序

移民法改革是每届选举的热门话题。 最近政府又出新招。 许多人纷纷打电话到本律师事务所打听。 许多以为新法提供了新的移民途径。 到底是不是这样的呢？

我们先来看看新法律怎么说。  新法律说， 美国公民的直系亲属，如果只是因为非法逗留而被法律归为禁止入境的， 可以向USCIS 申请禁止入境豁免， 然后再回到母国所在地的美国领事馆申请移民签证。 

这意味着什么呢？ 原来的法律呢， 要求非法逗留的美国公民的直系亲属回到母国所在地的美国领事馆申请移民签证。 当母国的美国领事馆的官员认定申请人是被禁止入境的一类人， 一或要求申请人等待3－10年， 二或向申请人收集资料， 向移民局申请豁免。 整个等待时间不用说非常长。 新法律改动的其实是法律程序。 

值得注意的是，法律程序的改动并没有改动法律的实质内容。比如， 要获得豁免， 要证明申请人的美国公民亲属将处于极其艰难的处境。 这个标准的难度没有改变。 申请人还是最好请律师帮忙。

What is New Waiver Process

Under current law, immediate relatives of U.S. citizens who have accrued more than six months of unlawful presence while in the United States are not eligible to adjust status in the United States to become lawful permanent residents. Instead, they must leave the U.S. and obtain an immigrant visa abroad. They must also obtain a waiver after they have appeared for an immigrant visa interview abroad and the Department of State has determined that they are inadmissible. The process takes a long time. 

Under the final rule, an immediate relative of a US citizen who are inadmissible only on account of unlawful presence may obtain a provisional unlawful presence waiver if they may demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent. 

The new provisional waiver process does not exempt immediate relatives from departing the United States for the consular immigrant visa process; however, they can apply for a provisional waiver before they depart for their immigrant visa interview abroad. The new process will reduce the amount of time U.S. citizen are separated from their qualifying immediate relatives.