Fast Facts on the E Treaty Visas Program

The E Treaty Visas program is one of the most popular ways for foreign nationals of countries that have trade treaties with the U.S. to come live and work in the U.S. Some of the countries whose citizens qualify for E Treaty Visas include: Argentina, Canada, Finland, Germany, Iran, Italy, Mexico, Norway, Pakistan, Philippines, Singapore, Sweden, United Kingdom, and Austria. All of these countries, and others, have maintained treaties with the U.S. promising mutual trade and investment.

What are the E Treaty Visas?

E Treaty Visas are non-immigrant visas. This means that it allows the holder to enter the U.S. legally and work for their designated employer, but it does not put the holder on the path to legal permanent residency and U.S. citizenship. In addition, the holder must be a citizen of a qualifying treaty country.

There are two E Visas: the E-1 Treaty Trader Visa and the E-2 Treaty Investor Visa. Generally speaking, the E-1 Visa is for foreign employees of foreign companies that engage in substantial trade principally between the U.S. and the foreign-owned company’s treaty country. The E-2 Visa is for foreign nationals who invest a substantial amount of capital in return for at least 50% ownership or operational control into an operating company in the U.S.

What are the necessary employee qualifications under the E Visa?

Proposed foreign employees must meet certain criteria. For starters, the employee must originate from the same home country as their employer. In addition, they must fall either into the category of manager/executive or that of an employee with specialized skills.

How long does an E Visa stay last?

It is important to note that an E Treaty Visa applicant has two avenues through which to apply: 1) U.S. Immigration and Citizenship Services (“USCIS”) and 2) the U.S. embassy in a foreign treaty nation. The duration of an E Visa depends on which application avenue is used and the reciprocity agreement between the U.S. and the foreign nation. Luckily, unlimited multi-year extensions are available under this program.

Must an employee under the E Visa stay within the U.S.?

There are no travel restrictions under the E Visa program, which means that the employee can visit their home country as often as they like and still come back into the U.S. – as long as they maintain their good status in the program.

Who can enter the U.S. with the applicant?

One of the best aspects of the E Visa program is that the employee can bring family members with them to the U.S. Spouses and unmarried children under 21 years of age can be brought along, and can potentially work in the U.S. themselves.

Applying for the E Visa program involves many moving parts, and to assure your best chance of success, you should have an experienced immigration lawyer on your side. Call the E Visa lawyers at David Hirson & Partners today to discuss your options with us.

Telephone: (949) 383-5358       Email: info@hirson.com       Website: www.hirson.com

EB-5 Retrogression and Vietnam: Answers to the Most Frequent Questions

 This post is created to answer the following:

  1. What is EB-5 retrogression?
  2. What will happen at the end of the fiscal year to visas that have not been used and how will they be allocated to the “oversubscribed” nations such as China and Vietnam?
  3. How long will retrogression for Vietnam last and why is July 22, 2014 the cut-off date?
  4. What is the impact of retrogression on children who are close to turning 21 at the time of I-526 filing?

Each question is answered, in order, below:

 

  1. General EB-5 Retrogression

Visa Allocation

10,000 visas are allocated annually for the EB-5 category and applicants from all countries are treated equally until it appears that the entire annual allocation will be used up during the fiscal year. When this happens, applicants from countries that use more than seven percent (7%) of the worldwide total (also known as “oversubscribing countries”) must wait for a future year’s allocation to be available before they can obtain a green card.

 

7% Cap

This does not mean that 7% of visas are set aside annually for each country in the world. Nor does this mean that any single country has only 7% of allocated visas annually. All this means is that any one country’s allocation is capped at 7% so long as other countries are taking up available visas. When other countries are not competing, then any visas that are “unused” are allocated to the waiting line in a first in first out (“FIFO”) order exclusive of per-country limits.

 

Exceeding the 7% Cap

When more than one country exceeds the 7% cap, then the oversubscribed countries are issued cut-off dates designed to let applications from not-oversubscribed countries proceed first. Once qualified applications from other countries have been accommodated, then simple FIFO order is instituted, i.e. oldest priority dates get the first visas until all visas for the year are taken, China being the biggest benefactor.

 

  1. Allocation of Unused Visas for Vietnam

Currently, China is at the head of the line for leftover visas, since it has been held back for years and thus applicants from China have the oldest applications on file. Applicants from Vietnam will now find themselves behind longer-pending Chinese applicants as per the FIFO rule discussed above.

 

Given the situation that Vietnamese applicants are not faced with, the positive is that Vietnam will at least receive 7% of visa allocations a year when they need it and likely will not exceed that cap by very much. If an applicant from Vietnam is held back this year, then he or she will be one of the older Vietnamese applications next year and therefore in a favorable position to receive one of the 700 new visas available to Vietnam at that point. Vietnamese applicants will not necessarily be able to rely on receiving a visa left over from the rest of the world, since thousands of Chinese applicants have earlier claim on any leftover visas.

 

  1. July 22, 2014 Cut-Off Date

As of the May 2018 Visa Bulletin, only Vietnamese EB-5 applicants who filed before July 22, 2014 will be eligible to receive an EB-5 immigrant visa. Please see below:

 

The Department of State, who is responsible for establishing cut-off dates, does not release how priority dates/cut-off dates are calculated or even when and how the priority date will shift. Each month, we check the visa bulletin to check and see if dates are progressed, however, until then, we are working with EB-5 priority date of July 22, 2014 for Vietnamese applicants.

 

  1. Impact on Children Reaching 21

As you are aware, once a child reaches the age of 21, he or she is no longer eligible for immigration benefits based on their relationship to the primary parent applicant. This is known as “aging out.” For applicants whose children are close to aging out, the Child Status Protection Act (CSPA) provides relief in some cases, but not in all.

 

CSPA

CSPA was created by the U.S. Congress to prevent children from aging out during the USCIS petition approval process. This Act, freezes a child’s age on the date the I-526 is filed through the date the petition is approved. The law allows the child to deduct the time the petition took to be adjudicated from his or her actual age, which allows the child to remain under the age of 21 at the time of applying for an immigrant visa abroad or filing for adjustment of status in the U.S. Once the I-526 petition is approved, the child’s age unfreezes and he or she must seek to acquire permanent residence within one (1) year of a visa becoming available.

 

Effect of Retrogression

However, when EB-5 retrogresses for a country such as Vietnam, protecting under CSPA becomes more complicated. If the period of retrogression is less than the period of USCIS I-526 adjudication, a child who has turned 21 will likely still be able to immigrate with his or her parent. However, if the visa cut-off date is too far back, the child may still “age out” even after using CSPA to reduce the child’s age. An analysis of CSPA will need to be conducted on a case by case basis at the time of filing Form I-526.

 

Please note, this post is created solely as general information. You should consult a licensed attorney for legal advice to determine the best course of action for your situation. The experienced EB-5 attorneys at David Hirson & Partners, LLP are available to help you.

 

Telephone: (949) 383-5358       Email: info@hirson.com       Website: www.hirson.com

 

The Final Step in EB-5: Getting Your Form I-829 Petition Approved

The last step for investors in the timeline is getting their I-829 petition approved. This involves a fair amount of work and organization, since the petition must show that all requirements of the EB-5 visa, including job creation and project’s progress towards completion, have been met. However, once these milestones are met, an EB-5 visa petitioner can finally be on their way to legal residency and, eventually, U.S. citizenship in the future.

 

Luckily, EB-5 regional centers help with putting together the necessary compliance documents for I-829 approval. In addition, working with an experienced EB-5 immigration lawyer is crucial to making sure that every step of the immigration process and each document is done in the right order to ensure maximum chance of I-829 approval.

 

Job Creation Requirements

One of the most crucial aspects of the I-829 approval process is proving that the required 10 full-time jobs per investor were created during the proper timeframe. The EB-5 regional center and investors, along with their EB-5 immigration attorneys should review the economic analysis first submitted to USCIS in the I-526 petition and compare that to how the project was completed. Were all of the project’s funds spent in the same economic input categories as originally contemplated? If there were significant differences between the original project plans (and associated economic analysis inputs), the involved parties should consider obtaining a revised or new economic impact analysis. This could have an impact on the number of jobs created by the project and jobs credited towards and EB-5 investor’s job creation requirement.

 

Timing

An EB-5 investor has a specific window of time in which to file his or her I-829 petition. This petition and all necessary evidence must be submitted between the day the two-year conditional permanent status in the U.S. expires and 90 days prior to that date. An EB-5 lawyer should be involved with preparing to file the I-829 petition some time before the 90-day window starts. The experienced EB-5 attorney knows how to evaluate economic analyses and other necessary documents prior to submission.

 

Whether you are nearing your I-829 application, or you still have some time before your conditional permanent residency ends, consider a call to David Hirson & Partners, LLP. We are an experienced EB-5 immigration law firm focused on the needs of investors in this and many other visa programs. Contact us today for help with your application process.

 

Telephone: (949) 383-5358      Email: info@hirson.com      Website: www.hirson.com