The EB-5 visa program gives green cards to foreign investors who invest $1m in a commercial enterprise that will create jobs for 10 people. The amount is reduced to $500K in rural and high unemployment areas.
Regional Centers are investment opportunities that are approved by the USCIS for such investments. When people hear that the Immigration Service first must approve the investment opportunity before it is designated as a Regional Center for EB-5 visa petitions, they assume that their investment will be safe and that they are guaranteed green cards. In reality, all the Immigration Service is saying by granting Regional Center status is that if everything goes according to the business plan, each investment will generate jobs for 10 workers.
The USCIS disclosed at an EB-5 Visa Stakeholder Meeting in June, 2010 that there were more petitions for green cards through the EB-5 Visa category in the first 7 months of this fiscal year than in the entire 2009 fiscal year. Investments in Regional Centers accounted for approximately 90-95% of these petitions.
According to the USCIS they received 1100 EB-5 visa petitions from October 2009 to May 2010 and approved 955 of such petitions.
The petitioner initially receives a two-year Conditional Green Card and at the second anniversary must prove that the business is operating according to the business plan and the money remains invested.
There are now ninety-four Regional Centers in which an investment can lead to EB-5 visa green cards for foreign investors and their families. The Immigration Service recently published their new list, which includes 29 California Regional Centers. In March 2007 there were only 17 active Regional Centers.
An investment in a Regional Center is becoming an attractive way to get permanent residence, if you have the money. The amount of the investment has not increased in 20 years, but potential investors must be careful. An investment in a Regional Center does not guarantee a green card through the EB-5 visa program.
Regional Centers offer flexibility to an investor. For example, a person may invest in one of the California Regional Centers, while operating a business in Vermont or retiring in Florida. Parents may lend money to their children for the initial investment.
The choice of investment opportunities in Regional Centers has swelled and people should select investments that suit their investment strategies and which they believe will yield the best results. There are many types of Regional Centers, which include investment opportunities in hospitality, warehousing, real estate, agriculture, manufacture and even the motion picture production.
An investor should consider the types of investments that appeal to him or her. Why would someone invest in vineyards or motion pictures if they do not know the first thing about them?
There are many issues in the EB-5 visa. What is particularly important is the source of the funds. You must be sure that the source of the funds for the investment qualifies for the EB-visa. Money that is borrowed on the security of the investment or cash that comes from an investor’s corporation does not qualify. The investment must be made directly by the investor. The proof of the source of the funds is critical.
It is possible for the funds to pass through various banking accounts, provided it is possible to trace the funds as being from the investor.
A person must make specific inquiries with the Regional Center that relate to the likelihood of the business being successful and the probabilities of the investment resulting in a green card.
It is essential to use the services of professionals, because once the money is invested, the investor has very little control over the business. While the EB-5 visa requires an investor to have policy-making decisions, an investor’s input is minimal, when there are many investors.
*Author: Leon Snaid is a Certified Immigration Law Specialist, who is certified by the State Bar of California’s Board of Legal Specialization. www.snaid.com
Warning: The information is the above article is not legal advice and should not be acted upon without first consulting with an attorney.
In the past a petition that may have been
filed by a
Now the Immigration Service has provided
guidance on petitions by deceased
In future, surviving spouses of U.S.
citizens who died before the second anniversary of the marriage, if not
remarried and who were not legally separated from the citizen spouse at the
time of the citizen’s death and who are residing in the United States as well
as such surviving spouse’s children will now be entitled to humanitarian relief
in their pursuit for Permanent Residence.
There is no question that our
immigration laws need overhauling. Many people think that the only area of
immigration law that is being considered is the “legalization” of illegal
aliens. This is not true. There are many areas of immigration law that need
review and changes.
The big question is if and how
the immigration laws will be changed.
On June 25 the President, Vice President, and key cabinet
members met with a bipartisan group of Senate and
House leaders representing the different views on
immigration. The White House characterized the meeting as the
"launch" of a policy conversation and "an honest discussion about
the issues...identifying areas of agreement and areas where we still have work
to do, with the hope of beginning the debate in earnest later this year."
President Obama wants the leaders of both parties to get something
done soon. He does not want discussions on the issues to be delayed for two,
three or five years from now.
The subject is highly sensitive and will
draw inflame opposition to any changes. The good news is that at least
immigration reform is being discussed.
On March 20, 2009 the law making Religious Workers eligible for permanent
residence as Special Immigrants was extended to September 30, 2009
Priority
Dates and How they Work
The
There are the family categories (or as
they are known, the Family Preferences e.g. Sons and daughters of
In most of these “Preferences” there is a
backlog, which means that there are more people who are eligible to get green
cards, than there are green cards available from the quota each year. So there
are lines in the different categories.
When a person applies for permanent
residence in one of these categories, the date of the application is
basically his/her “priority date.” This is provided that the application
is ultimately approved.
So a person’s application may be
approved, but because of the backlogged quota system in most of the
Preferences, there probably will not be a green card available at that time.
How
does a person know, when they are at the front of the line to get their green
cards?
Each month the State Department issues
the Visa Bulletin, which informs the public, which people in the various
preferences are at the front of the line to get their permanent residency.
The State Department does not mention the
people by name, but rather gives the priority dates that are “current.”
When a person’s priority date is
current, they are entitled to
file for the final processing for their permanent residence (green cards.)
Guestimates on when a person may
expect his/her priority date to be current
I have carefully used the word
“guestimates,” and not “estimates,” because the only information that is
available in the Visa Bulletin is how long the person, who now at the front of
the line had to wait to get there.
So if a person’s Priority Date is June 1,
2005 and their priority became current on June 1, 2009, they had to wait in the
line for 4 years in their preference category. This information does not
guarantee that someone, who applies in the exact same preference category on
June 1, 2009, will have to wait the same amount of time. There could be many
more people in front of the person, who applies on June 1, 2009, than were in
front of the person who applied in June 2005.
The calculation is further complicated by
the fact that there is a limit on the number of green cards that may be given
to any particular country in any given year. For the most part all countries
are equally backed up, except
For many years people
were able to get green cards by opening a business in the USA and transferring
themselves from their foreign business to the USA, under the Intra company
Transfer Visa (L-1 visa) This option is still available, but the requirements
to qualify have become far more onerous than in the past.
In 1990, when it was
relatively easy to obtain green cards through this intra company transfer
method, Congress created the EB-5 visa, also known as the Employment Creation
Visa.
This visa allows
foreign investors to gain permanent residence to the
The procedure is that
a person (family) receives a conditional green card for 2 years and then
applies for an unrestricted green card by proving that the money is still
invested and 10 people are still employed.
When this EB-5 visa law
passed, the Immigration Service expected a run on the 10,000 green cards that
are available each year. Instead there was not much more than a nibble by
foreigners. The reason was that it was still easy to get a green card by
setting up a business with far less than $1m and it was not necessary to have
at least 10 employees. Also 18 years ago, a million dollars was worth far more
than it is today.
Then in 1993 Congress
created a pilot program known as the Regional Centers, which allows private and
governmental agencies to set up prepackaged investment opportunities for
foreigners, which require certification by the Immigration Service. Many of
these investments only require a $500,000 investment for the EB-5 Visa.
The advantage that
Since sophisticated
business people, using sophisticated lawyers created the investment
opportunities in the Regional Centers, they wanted to make it as easy as
possible for people to invest in their Regional Centers.
Some of the investment
structures in Regional Centers were extremely creative so before offering them
to the public, the
The Immigration
Service provided “advisory opinions.” Advisory opinions by the Immigration
Service do not bind the Immigration Service, but they were the best source of
information on the meaning of the new law.
Obviously the
Suddenly in 1998 the Administrative Appeals
Office (An appeal court of the Immigration Service) overturned some of these
advisory opinions, which
EB-5 visa investors,
who were hurt by these 1998 decisions lobbied Congress for help. Eventually in
2002 Congress enacted changes to the EB-5 program, which gave some relief to
people who filed petitions for EB-5 Investor Green Cards and had them approved
between January 1, 1995 and August 31, 1998.
This fiasco was a
significant detriment to attorneys recommending this visa to their clients from
1998 until recently.
Three reasons why
the EB-5 visa investment is gaining renewed interest.
Three reasons have all
converged at the same time to make the EB-5 visa more attractive to investors.
1. The Dropping
dollar offers a deep discount.
In 1992, when the Euro
became legal tender, it took 560,000 Euro to make the $500,000 investment.
In March, 2009 it takes 366,611-00 Euro for the $500,000
investment
The same is true for
many other currencies.
The drop in the value
dollar results in many foreign investors risking less of their net worth in
Regional Centers, where they are not in control of the day-to-day management of
their investment.
2. Greater
Certainty in the Law
For years there was
confusion and chaos in the interpretation of the EB-5 visa law, which led to
uncertainty in the law. People need to know what is permitted under the law and
the last 19 years have given clear definition to many of the qualifying
requirements.
3. Involvement by
the Immigration Service
The Immigration
Service has been directing a lot more attention to this EB- 5 investment visa.
In September 2004 they
organized a Public Information Meeting on
The Pilot Program for
the Regional Centers was scheduled to sunset in September 2008, but has been
extended to Setember 2009. This program has been extended a number of times in
increments of three years. This current extension was passed almost as an
emergency measure to give Congress time to deal with the current economic
crisis before reviewing the EB-5 visa program
Conclusion
Perhaps the greatest
reason why businesspeople are giving the Investment Green Card (EB-5 visa) a
fresh look is because the L-1, Intra Company Transfer is now fraught with
obstacles and uncertainty.
In the past two years
there has been a distinct increase in the number of petitions that have been
filed and approved than in the previous 8 years. Even so, the number of green
cards that have been granted are less than are available to investors on an
annual basis. The question now is: How
long will this be the case?
The
The quota system allocates green cards
for the fiscal year October 1 to September 30.
Most of the categories have lines, because
there is a greater demand for green cards than there are green cards available.
A person gets into a category line
usually on the date a petition for permanent residence is granted. This date is
known as a priority date. A priority date for skilled workers is usually the
date that they file their labor certification applications.
The quota system is erratic. For example,
during March 2009 skilled workers, who had a priority date of May 1, 2005 were
getting visas in March 2009. Yet next month, April 2009, this category will
regress to people with priority dates of March 1, 2003 or earlier.
All indications are that the 3rd
preference will regress even further or the visas in this category may become
totally unavailable until the new fiscal year.
Selective Service is the way the U.S. Government prepares for a military crisis. A person is not inducted into the military by registering, but may be drafted in a military crisis. www.sss.gov
Illegal aliens
living in the
Tourists,
students and members of a diplomatic corp or trade mission and their families
need not register.
If you fail to
register when you were required to do so, you may find yourself being denied
naturalization. It is possible to apply for Naturalization after you turn 32,
if you failed to do so. However, you must provide good reasons why you did not
register, when you should have done so.
Since the bill was previously passed in
the House of Representatives on 3/4/09, it now
moves to the White House for presidential signature, which is expected
to occur in the coming days.
Just 16 months ago, more than 349,000 name checks were pending; of that, nearly 150,000 had been pending for more than six months. All USCIS requests pending for six months or more as of February 28, 2009, have now been responded to by the FBI’s National Name Check Program (NNCP).
USCIS says that the FBI are on schedule to meet their next two goals: all name checks requests pending longer than 90 days to be completed by May 30, 2009 and, by the end of June 2009, the FBI will complete 98 percent of USCIS name check requests within 30 days and process the remaining two percent within three months. USCIS says that it will in conjunction with the FBI continue to focus on sustaining a rigorous and efficient.