eb-5: outsourcing an investment through a regional...
TRANSCRIPT
The EB-5 immigrant visa program grants Lawful Permanent Residency in the United States (a Green Card) for investors who invest $1,000,000.00 in a new commercial enterprise (NCE) in the United States which will facilitate U.S. economic growth by creating at least ten full-time jobs. However, if the enterprise benefiting from the investment is in an “Employment Targeted Area” or “Rural Area,” the capital investment in the NCE need only be $500,000.00. One of the main conditions of this program is that investor must be able to create ten new full-time jobs for U.S. Citizens or Permanent Residents within two years of the date the investor is granted conditional residency (a Conditional Green Card). At the end of the two years, if the NCE creates ten jobs, the conditions on that green card are lifted, and the investor (and his or her family) becomes a permanent resident. This is normally an arduous process which requires day-to-day management of the NCE. Moreover, immigration laws regarding such investments are very complex; therefore, it is important that the investment itself and the creation of the ten new jobs meet statutory requirements. However, there is the possibility of outsourcing the process in order to ease the burden on the investor.
If the proposition of outsourcing the investment and creation of jobs is appealing, then the prospective investor should explore the option of investing in a NCE affiliated with an EB-5 Regional Center. It is vital to remember that Regional Centers are not USCIS-approved investment projects. They are only investment projects which USCIS has reviewed and approved to receive funds from investors, who can also submit an EB-5 Application to obtain Permanent Residency based on their investment. However, it is up to the investor do their due diligence regarding the NCE and the Regional Center to ensure that the Regional Center and the NCE are bona fide. One of the main advantages of investment in a Regional Center project is that USCIS will permit the Regional Center-affiliated NCE to count indirect and induced jobs in addition to direct jobs towards the job creation requirement. Additionally, investors in a NCE affiliated with a Regional Center need not be engaged in the day-to-day management of the new commercial enterprise. Instead, the investor need only be involved in the decision-making process of the NCE. Therefore, the investor does not need to live close to the investment project. Moreover, the investor can engage in any other business or work for a U.S. employer thanks to the new Green Card obtained through investment in the Regional Center-affiliated NCE.
Chiranjaya Nanayakkara Attorney __________________________________________
March 2015
EB-5: OUTSOURCING AN
INVESTMENT THROUGH A
REGIONAL CENTER ___________________________________________________________
TABLE OF CONTENTS
__________________________________________________________________
EB-5: Outsourcing an Investment
Through a Regional Center COVER
Alphabet Soup 2
Gathering Documentation:
FOIA Requests 3
Adjustment of Status:
Avoiding Bars to Re-Entry 4
In the News 5
One Step Ahead 6
ALPHABET SOUP
When immigrating from abroad to the United States, there are certain steps in the process which
are handled through U.S. Consulates and Embassies.
NVC: National Visa Center When USCIS approves an immigrant petition, it is sent to the NVC to begin pre-processing, which
involves collection of visa application fees and supporting documentation, which the NVC then
forwards to the appropriate consulate or embassy.
CP: Consular Processing When a prospective immigrant has had their petition approved and has an immediately available
immigrant visa number, they may then begin CP through a U.S. Consulate to obtain their immigrant
visa so they may be admitted to the U.S. as a permanent resident.
CEAC: Consular Electronic Application Center
A website run by the DOS, the CEAC allows immigrants to submit their visa application form
online, as well as pay certain fees associated with CP. The CEAC also permits electronic
submission of applications for certain nonimmigrant visas.
Often, an applicant for immigration benefits or the respondent in an immigration case may lack documentation necessary to effectively pursue their claims. However, many of these needed documents may already be in the hands of the governmental agencies with which the individual has interacted throughout their process. A valuable tool for procurement of copies of such documents at minimal cost is the submission of a FOIA request to those agencies.
“FOIA” refers to the Freedom of Information and Privacy Act, which affords individuals the right to request access to the records of an agency of the federal government (with certain exceptions or exclusions for national security and other purposes). The relevant agencies for immigration purposes include agencies such as USCIS, CBP, ICE, and EOIR.
There is no required format for a FOIA request; however, each agency does have particular forms for submitting such a request, and using the correct forms can help speed up responses. Furthermore, many agencies now provide online tools for submitting FOIA requests as well. There is no fee for submitting FOIA requests, but costs may be assessed later for administrative purposes such as copying of records. However, the main drawback of relying on a FOIA request to procure documentation is the fact that responses often take months, and may sometimes even take years.
A FOIA request to USCIS should be submitted to the National Records Center (NRC), which maintains records for USCIS. NRC FOIA requests may be submitted by
mail or via e-mail. Generally, the forms which should be submitted by your legal team are a Form G-28 and a Form G-639, and at times a Form DOJ-361 as well. Processing times can vary a great deal, and while simple requests may take only a few months, more complex requests may take up to a year.
CBP has various locations for FOIA submission based on the type of records sought. In addition, CBP also accepts submissions via their online system. The relevant forms are also the Form G-28, the Form G-639, and the Form DOJ-361. Processing times for CPB are usually a bit longer, the normal range being around 12-18 months for a response.
ICE handles immigration records compiled for law enforcement purposes. Submissions may be made via mail or e-mail. Again, the relevant forms are the Form G-28, the Form G-639, and the Form DOJ-361. While processing times vary, ICE FOIA requests generally may take over a year for completion.
EOIR FOIA requests are made to procure records from immigration court proceedings. Submissions may be made via mail or e-mail, and require Form DOJ-361 and Form G-639. These FOIA requests are often processed relatively quickly, taking an average of 2-3 months.
When adequate information is not available for a request to the above agencies or there is difficulty in establishing the identity of the applicant, it may be advisable to first submit a FOIA to the Office of Biometric Identity Management (OBIM). OBIM conducts searches of records by fingerprint and A-number, and provides a US-Visit report regarding the applicant. The relative forms are the Form G-28 and the Form G-639, in addition to which a fingerprint/biometric card should be provided. While OBIM has experienced wait times of up to 8 months, the recent addition of staff has begun to eliminate the backlog.
GATHERING DOCUMENTATION:
FOIA REQUESTS ______________________________________________________________________
Angela Anthony Legal Assistant ______________________________________________
Many people who are married to U.S.
citizens or have lawful permanent resident
(LPR) relatives may petition to qualify for
green cards but can face certain major barriers
to the process. Among these are “three- and
ten-year bars” to reentry, provisions of the law
which prohibit applicants from returning to the
United States if they were previously here
illegally. Section 212(a)(9) of the Immigration
and Nationality Act imposes re-entry bars on
immigrants who are present in the United
States for a period of time without any lawful
status, leave the United States, but then wish
to re-enter the country lawfully. A three-year
bar to readmission applies if an immigrant
enters the country without inspection, or if he
or she overstays their valid period of
admission by more than 180 days but by less
than one year. A ten-year bar applies when the
immigrant applicant stays in the country
illegally for a period of more than one year.
If the applicant for a family-based Green
Card is the spouse, parent, or child (under the
age of 21) of a U.S. citizen – categorized as an
“immediate relative” of a U.S. citizen – and if
the applicant entered the United States with a
valid visa, the applicant may be eligible to
adjust status while in the United States,
without having to leave the country. However,
all other people applying through the family-
based system must go abroad and obtain a visa
at a foreign U.S. consulate in order to adjust
status, a procedure known as “consular
processing.”
Waivers of the three- and ten-year bars
are available, but only where extreme hardship
to an applicant’s U.S. citizen or LPR spouse or
parent can be established. Hardship to solely
the immigrant applicant is not considered a
factor, and neither is hardship to an immigrant
applicant’s U.S. citizen children. Whereas
formerly immigrant applicants had to leave the
country to apply for a waiver at a consulate
abroad and await the results in uncertainty, the
current system in place tries to alleviate the
ambiguity of the situation. Now, individuals
may apply for a waiver while still stateside,
wait for the process to be completed, and –
upon approval – leave the United States with
confidence and in certainty of their return.
They may then obtain their immigrant visa at a
consulate abroad and re-enter the United States
freely.
Due to the limitations on eligibility for
waivers, it may sometimes be preferable for a
nonimmigrant who has overstayed their visa to
exit the United States prior to the date the three-
or ten-year bar will be implemented rather than
to take the risk that the waiver application may
be denied.
To explore how you may benefit from
the current waiver program, please contact an
immigration attorney.
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ADJUSTMENT OF STATUS:
AVOIDING BARS TO RE-ENTRY __________________________________________________________________
Varsha Shirhatti
Legal Clerk ____________________________________________________
IN THE NEWS…
__________________________________________________________________
Hearing on Federal Application for Stay on Injunction Blocking Executive
Action set for April 2015
A hearing has been set for April 17, 2015, in the Fifth U.S. Circuit Court of Appeals in New
Orleans regarding the emergency motion by the Justice Department to lift the preliminary
injunction issued by the U.S. District Court of for the Southern District of Texas halting
implementation of President Obama’s Executive actions on expanded DACA/DAPA. The
hearing was quickly scheduled as part of request granted to expedite the appeal regarding
the injunction. Initially, the Justice Department had requested that the District Court lift the
injunction while the case was appealed, but the request was put on hold due to allegations
that federal prosecutors had misled the judge regarding the issuance of three-year reprieves
from deportation while the judge was deciding on the injunction. U.S. District Judge
Andrew Hanen may issue sanctions against the Justice Department if he finds the U.S.
government had begun implementation of expanded DACA while the case was ongoing.
Rate of Denials for L-1B Petitions by USCIS at an All-Time High Despite No
Recent Changes in Adjudication Standard
An L-1B visa allows an employer to transfer an employee with “specialized knowledge”
into the United States, as long as the employee has worked at least one year abroad for the
employer and has “special knowledge of the company product and its application in
international markets or has an advanced level of knowledge of processes and procedures
of the company.” In Fiscal Year 2014, the denial rate of L-1B petitions by USCIS had risen
to the rate of 35 percent, with employees of Indian origin having made up 56 percent of
those denials in the last three fiscal years. Furthermore, renewal petitions for L-1B
employees have been denied at higher rates than initial applications. In addition to this,
Requests for Evidence, which extend and delay the petition process, have been issued at
correspondingly high rates, with Indian petitions again receiving the highest amount of
requests. Employers have found the recent standards for L-1B approval to be relatively
arbitrary, and these issues in addition to the delays and additional employer compliance
costs involved are discouraging international employers from transferring employees into
the United States via the L-1B visa. However, on March 24, 2015, USCIS issued a policy
memorandum in order to provide further adjudication guidance on the L-1B program, which
will hopefully help to clarify and resolve some of these issues.
BALCA Upholds Denial of Application for Permanent Employment
Certification Due to Inadvertent Employer Failure to File a Complete
Recruitment Report with Audit Response
The Board of Alien Labor Certification Appeals (BALCA) upheld the denial of ETA Form
9089, Application for Permanent Employer Certification, where an employer response to an
audit notification which requested the recruitment report failed accidentally to include the
entire report, the first page being omitted. In a motion for reconsideration, the employer
attached the first page of the recruitment report, and asked that the Certifying Officer (CO)
excuse the oversight, since the audit response had included evidence which documented the
efforts detailed on the missing recruitment report page. However, the CO refused to
consider the missing page, stating the employer was prohibited from providing such
evidence with the request for reconsideration under 20 CFR § 656.24(g)(2)(i), and reasserted
his denial of certification, which was upheld by BALCA.
ONE STEP AHEAD
When opening a process with your immigration law firm, try to have copies of
identification documents of the client immediately available. Whether family members,
personal representatives, or the clients themselves are opening a process, it is best to provide copies
of identification documents such as a passport, driver’s license, or other photographic identification
of the relevant parties to the process to the firm. This will not only clarify the actual applicant or
petitioner in a process for the legal team, but will also ensure that names are entered completely
and accurately into the firm’s records, especially when an individual does not tend to use their full
legal name when interacting with others. Furthermore, it will usually provide basic information
that is generally needed in most processes, such as date of birth and country of origin.
Tune in to the attorneys of WNRG as they discuss
important immigration law issues and updates:
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Editor’s Note:
This newsletter is intended merely to inform, and
not as a substitute for legal advice from your
attorney on any specific matters. If you have a
legal problem, please consult your attorney.
~ Angela Anthony
Legal Assistant
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