DHS proposing to eliminate concurrent filings could impact visa petitioners.

U.S. Department of Homeland Security Proposes to Eliminate Concurrent Filings

In this new announcement published earlier this month, the Department of Homeland Security (DHS) is proposing to eliminate the ability to concurrently file visa petitions (I-130 Family Based Petitioners and I-140 Employment Petitions) with adjustment of status applications (I-485) for those within the United States seeking to acquire permanent residence status. This proposed change would affect all “preference category” applicants, meaning siblings of adult U.S. citizens. Parents, spouses, and children under 21 years of age would not be affected by this.

Currently, concurrent filing is available in the following situations:

  • Immediate relatives of U.S. citizens living in the United States
  • Most employment-based applicants and their eligible family members when a visa number is immediately available
  • Special immigrant juveniles if an EB-4 visa number is immediately available and USCIS has jurisdiction over the application to adjust status.
  • Self-petitioning battered spouse or child if:
    • The abusive spouse or parent is a U.S. citizen, or
    • If an immigrant visa number is immediately available
  • Certain Armed Forces Members applying for a special immigrant visa under Section101(a)(27)(K) of the Immigration and Nationality Act (INA) Special Immigrant International Organization Employee or family member

An applicant must be in the United States to concurrently file. It is important to note that the proposed change right now only mentions eliminating concurrent filing for “preference categories” in the visa bulletin, leaving immediate relatives out of harm’s way. However, this will affect most employment-based petitions where a visa number is currently available.

This change will require visa petitioners to maintain some kind of nonimmigrant status while their petition is pending and force them to wait longer to apply to adjust status in the United States, despite a visa number being available.

You can read more about concurrent filings here.

The experienced attorneys at David Hirson & Partners, LLP are ready to help you with any changes to U.S. immigration processes and procedures. Contact us to receive answers to your corporate- and family-based immigration questions:

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

4 Steps to become a U.S. Resident through Perm Labor Certification

4 Steps to U.S. Permanent Residency Through PERM Labor Certification [Infographic]

Employers play a big role in an immigrant employee’s ability to obtain U.S. permanent resident status. An employer must often provide a labor certification as part of the application process. This important step is a requirement to apply for a green card for may workers. Providing a labor certification, often referred to as a “PERM,” is more than just filling out a form, however. It requires that employers go through a three-step process, after which there is only one more step required for the employee to obtain resident status in the U.S.

How to obtain permanent residence through PERM Labor Certification.

1.      Make a Prevailing Wage Request (PWR)

The Immigration and Nationality Act requires that wages offered to immigrant workers will not negatively affect the rates that workers in the U.S. earn while they are employed in a similar job. To ensure that salaries are comparable for purposes of obtaining a labor certification, an employer must request a PWR from the Department of Labor (DOL).

Of course, wages vary significantly across geographic areas and industries. Employers can determine whether their position has a comparable salary by using the Foreign Labor Certification Data Center Wage Library. This is a good place to start if you are unsure if your job provides a prevailing wage based on the market in your area.

The employer must make a PWR by visiting the U.S. Department of Labor’s website. The employer will provide various details about the job to determine what a minimum wage that must be offered may be. These details include things like:

  • Worksite location
  • Job requirements
  • Qualifications necessary
  • Job duties
  • Hours and working environment

Giving this information to the DOL is a requirement to obtain a labor certification, so employers should hammer out these details long before making an offer to a potential worker.

2.      Recruiting and Advertising

As an employer, you must demonstrate to the DOL that there are no qualified workers that are willing and able to fill the position. Part of that process includes a “good faith” recruitment and/or advertising effort. That usually consists of advertising or using recruitment efforts that are normal for the industry; it also includes three mandatory recruitment efforts:

  • Place an ad with the state workforce agency in the state where the work will be located.
  • Place newspaper ads on two different Sundays for the position. The newspaper should be one of major circulation in the intended area of employment.
  • Set out an ad or post a notice of the job opportunity at the worksite location.

If the position is professional, the employer must select three other methods of advertising to meet the requirements. All recruitment and advertising efforts must be no older than 180 days from when you file the PERM application.

3.      File ETA Form 9089

Next is to actually file ETA Form 9089 with the DOL. The DOL recommends that employers complete this form electronically, but it can also be submitted by mail as well. You provide much of the same information about the position requirement as was supplied with the PWR and details regarding the efforts you took to recruit or advertise. The form will also include information about the proposed worker, including:

  • Place of birth
  • Work experience
  • Educational background
  • Other relevant credentials

Once you submit the application, you must wait several months for the DOL to approve the filing. It can take even longer if the PERM is audited. The DOL will request additional information regarding any aspect of the application if it is reviewed.

  1. File Form I-140 to Obtain Permanent Residency

Only after the first three steps are completed can you obtain a labor certification that is necessary for the I-140 immigrant visa. The employer can then petition on behalf of the immigrant employee for permanent U.S. residency.

Having an attorney walk you through this process can save valuable time and money. The team at David Hirson & Partners, LLP is available to help! Contact us for more information or schedule an appointment.

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

EB-5 Expo in South Korea

David Hirson & Partners, LLP Sponsors and Presents at the 2018 EB5Investors EB-5 Expo in South Korea

 

EB-5 Expo in South Korea

 

David Hirson & Partners, LLP (“DHP”) is proud to have sponsored and presented at the EB5Investors 2018 EB-5 Expo in South Korea, hosted by EB5Investors Magazine. When the EB-5 Program first began in the 1990’s, South Korea was originally the top EB-5 market, outnumbering investors from Mainland China. Over the past 20 years, South Korea has generated a steady stream of EB-5 investors. Korean investors, who are very familiar with the advantages of the EB-5 program, tend to be highly sophisticated and financially savvy professionals such as doctors, lawyers, accountants and businessmen. This EB-5 Expo featured interactive panels which discussed topics such as the EB-5 application process and understanding source of funds documentation. Other topics included the mindset of Korean investors, how the EB-5 program impacts investors, and where the EB-5 program is heading in the near future.

 

Panel discusses issues for South Korean investors

Attorney Evelyn Hahn, Partner at DHP, and Jessie Park, Director of Korean Marketing at DHP, were present at this event. Evelyn moderated the panel on “Common Issues Facing Korean Investors”, which comprised of top migration agents in South Korea. This panel discussed common issues encountered by Korean investors such as: project standards for Korean investors, prospects of popular EB-5 projects in 2019 in Korea, Korean investors’ issues with source of funds, overseas remittance formalities in Korea, prospects of the EB-5 market in Korea after the future increase in investment amounts, etc. These panelists and Evelyn were able to provide the audience with unique and helpful insights based on their extensive experience working with Korean investors over the past several years.

David Hirson & Partners, LLP is proud and honored to be working with our partners and clients in South Korea. We are one of the very few EB-5 law firms in the U.S. with a team dedicated to Korea’s EB-5 market. Please contact our experienced team members for more details about the Korean EB-5 market and more information about how to go through the EB-5 immigrant investor visa process.

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

Franchise Investment and Immigration Seminar

“Reside Legally In The US Through A Franchise Investment” Seminar in Costa Mesa and Seattle

David Hirson & Partners LLP, Visa Franchise, and Turquoise Tax Advisory* will host five investment immigration seminars in Seattle, Washington and Costa Mesa, California this October. The seminar, “Reside Legally in the US through a Franchise Investment,” is geared towards foreign nationals seeking to reside legally in the U.S. through the E-2, EB-1c or EB-5 visas. English, Chinese, and Spanish events will be available. Find more information on the dates and locations below.

Flyer for Hirson Franchise Investment Seminar

Seattle, Washington 7:00-8:30 PM

David Hirson & Partners LLP | 800 5th Avenue | Suite 4100 | Seattle, WA 98104

Costa Mesa, California 3:00-4:30 PM

Law Offices of David Hirson & Partners, LLP | 1122 Bristol Street | Costa Mesa, CA 92626  

Agenda

E-2, L-1, EB-1c and EB-5 Visas – The Basics, The Requirements and US Immigration Updates

The United States Franchise Market and Opportunities for Foreign Investors

*Pre-Immigration Planning, Business Tax Planning and Entity Structuring

Questions & Answers

David Hirson & Partners, LLP 

David Hirson & Partners, LLP with offices in Costa Mesa, California and Seattle, Washington, has over 30 years of experience in corporate, business and investment immigration, and the foundation of our practice is the lasting relationships we have built within the community.We proudly support a diverse client base that spans across local, regional and national levels. Our business immigration practice provides a full range of services, including an EB-5 investment immigration practice that is nationally recognized for individualized attention and expertise. From all of us at David Hirson & Partners, we look forward to serving your legal needs.

Visa Franchise

At Visa Franchise, we specialize in helping foreign nationals find the best franchise investment that will qualify them for an E-2, EB-1c, or EB-5 visa. Our goal is to simplify the process by finding and analyzing the best franchise investments for our clients and their family based on their own unique profile. We have advised hundreds of clients from over 35 countries around the world. Testimonials can be found on our website here. If you are interested in owning a franchise please reach out to info@visafranchise.com or call us at +1-888-550-7556.

Turquoise Tax Advisory

Turquoise Tax Advisory is a Washington State CPA firm that specializes in providing tax services for cross border taxpayers and businesses.  US tax law is one of the most complex fields of law in the US legal system.  Providing accurate and thorough tax advice requires a lifelong commitment to developing the necessary expertise to advise international clients. Deniz Kiral has been a CPA since 1991 and developed his tax expertise through his experience in top internationally public accounting firms and collaborating with leading tax attorneys and accountants in the profession.

*Turquoise Tax Advisory will be in the Seattle, Washington event, but not in Costa Mesa, California

Reach out to us at +1 949.383.5369 or info@hirsonimmigration.com with any questions regarding the event!

Feature Article Show Keys to Success Between U.S. Law Firms and Vietnam

Feature Article Shows Keys to Success Between U.S. Law Firms and Vietnam

Keys to a Successful Partnership Between U.S. Law Firms and Vietnamese Migration Agencies – DHP’s Feature Article in First Vietnamese Edition of EB5Investors Magazine

David Hirson & Partners, LLP (“DHP”) is honored to have two of its dedicated Vietnam immigration professionals be the authors of a featured article in EB5Investors Magazine’s first-ever Vietnamese edition. EB5Investors.com and EB5Investors Magazine is known as being one of the leading platforms for all EB-5 immigrant visa knowledge. DHP is a regular contributor to all of EB5Investors’ magazines and international conferences.

The article can be read here: Keys to a Successful Partnership Between U.S. Law Firms and Vietnamese Migration Agencies

Attorney Phuong Le says, “This article has been published with perfect timing after our firm just returned from a two-week business trip to Vietnam. Many thanks to our clients and partners for a successful and productive journey across the country filled with seminars, lectures, consultations, and (way too much) food. Whether you’re an established or new Vietnamese migration agency, this article covers the important issues you’ll want to consider as you select a top tier law firm to support your business and investors. If you are considering EB-5 for you and your family’s immigration, this article can provide you with some tips on how to select the right team to help with your immigration goals.”

Contact us at David Hirson & Partners, LLP to schedule a consult with our team of professionals who can advise you on how to move forward with you and your family’s immigration goals.

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

 

justice-us-eb5-investor-picture

US Department of State Visa Bulletin for October 2018 and its Implications for EB-5 Investors from Vietnam

CLIENT ALERT

September 17, 2018

RE:      US Department of State Visa Bulletin for October 2018 and its Implications for EB-5 Investors from Vietnam

 

The latest visa bulletin from the U.S. Department of State is a positive development for EB-5 investors because it shows that (1) the priority date for pending investors has jumped over a year for EB-5 investors from Vietnam and (2) EB-5 investors (except for Mainland China-born) are eligible to file their adjustment of status applications if they’re in the U.S. and otherwise qualified.

  1. The October 2018 Visa Bulletin Board

With the 2018 fiscal year coming to an end, the United States Citizenship and Immigration Service (“USCIS”), in conjunction with the U.S. Department of State (“DOS”), issued the upcoming visa bulletin for October 2018 showing dates of action for both family-based and employment-based visa categories.[1] The visa bulletin shows who is eligible to file for an immigrant visa abroad, or for adjustment of status within the United States based on the number of immigrant visas the DOS has made available at that time. The October 2018 Visa Bulletin reflects the following as “final action” dates for employment-based cases:

 

All Others CHINA

 

EL SALVADOR
GUATEMALA
HONDURAS
INDIA MEXICO PHILIPPINES VIETNAM
1st 01APR17 01JUN16 01APR17 01JUN16 01APR17 01APR17 01APR17
2nd C 01APR15 C 26MAR09 C C C
3rd C 01JUN15 C 01JAN09 C 01JUN17 C
Other Workers C 01MAY07 C 01JAN09 C 01JUN17 C
4th C C 15FEB16 C 22OCT16 C C
Certain Religious Workers U U U U U U U
5th Non-Regional 

Center
(C5 and T5)

C 15AUG14 C C C C 01JAN16
5th Regional Center
(I5 and R5)[2]
U U U U U U U

 

As illustrated in the highlighted column above, for those from Vietnam who filed EB-5 petitions under section 203(b)(5) of the Immigration and Nationality Act (“INA”), this visa bulletin presents promising developments in the adjudication process for those awaiting approval.

Every year, Congress allots 10,000 immigrant visas for the EB-5 employment-based visas, with 3,000 of those set aside for those who invested in Targeted Employment Areas (“TEAs”), and another 3,000 for those who invested in regional centers.[3] Once again, the DOS will issue about 700 immigrant visas at the beginning of the 2019 fiscal year for Vietnam’s EB-5 investors.[4]

  1. Latest Priority Date for EB-5 Investors from Vietnam (January 1, 2016) & Effect on Pending Petitions

This visa bulletin allows those who received a priority date on their petition earlier than January 1, 2016 to apply for an immigrant visa abroad, or to adjust status in the U.S. This is a significant improvement from the prior final action date in the September 2018 Visa Bulletin, which only allowed immigrant visas for those with a priority date earlier than August 8, 2014.[5]

Vietnam first experienced retrogression in May 2018 and has maintained a date of action around the end of July or beginning of August 2014 since that time. The new January 2016 action date indicates that the waiting period for those investors from Vietnam who filed EB-5 petitions will have a shorter waiting period for lawful permanent resident status in the United States. While the current wait time is approximately six years from the date of filing for Vietnamese investors, this two-year shift in final action date points towards faster adjudication and shorter times between approval and visa availability.[6]

This is promising news for the dependents of EB-5 investors for whom aging out is a concern. While the Child Status Protection Act (“CSPA”) “freezes” a child’s age at the time of filing the EB-5 petition, this only applies until the EB-5 petition is approved. At the time the immigrant visa becomes available, the time it took to adjudicate the EB-5 petition is subtracted from the child’s age at the time a visa becomes available.[7] Thus, a shorter period of retrogression means that fewer children are likely to age out before an immigrant visa becomes available.

As one last piece of positive news, USCIS has announced that it will be allowing people to file their adjustment of status applications in the United States using the “Filing Date” chart below for the month of October:

 

All Others CHINA EL SALVADOR
GUATEMALA
HONDURAS
INDIA MEXICO  PHILIPPINES 
1st 01JUN18 01OCT17 01JUN18 01OCT17 01JUN18 01JUN18
2nd C 15JUN15 C 22MAY09 C C
3rd C 08AUG15 C 01OCT09 C 01JUL17
Other Workers C 01JUN08 C 01OCT09 C 01JUL17
4th C C 01MAY16 C C C
Certain Religious Workers C C 01MAY16 C C C
5th Non-Regional Center
(C5 and T5)
C 01OCT14 C C C C
5th Regional Center
(I5 and R5)
C 01OCT14 C C C C

 

These dates are generally earlier than the final action dates posted above and are used when USCIS determines that there are more immigrant visas available than they originally predicted for the month. This is especially good news for Vietnam, as Vietnam does not have a separate category with retrogression for “filing dates” – it is current, allowing Vietnamese investors within the United States who have approved EB-5 petitions to file for their conditional permanent residence.

While nobody can predict how the visa bulletin will move in the future, on balance, the October 2018 Visa Bulletin is a positive development for Vietnamese EB-5 investors and we will continue to monitor the situation on behalf of our investors.

 

[1] https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2019/visa-bulletin-for-october-2018.html

[2] Note that the visa bulletin current shows “U” for “unavailable” for those who invested through a regional center. This is because the regional center program is only funded through the end of the fiscal year. However, Congress has passed a continuing resolution, which would extend the regional center program until December 2018.[2] Upon signature by the President, the final action dates shown for non-regional center petitions would also apply to regional centers.

[3] INA § 203(b)(5); Section 610 of Public Law 102-395 (Oct. 6, 1992)

[4] “No more than 7 percent of the visas may be issued to natives of any one country in a fiscal year.”

[5] https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2018/visa-bulletin-for-september-2018.html

[6] Please note that the time between filing and approval is taking approximately 20-27 months. See https://egov.uscis.gov/processing-times/

[7] USCIS Adjudicator’s Field Manual, Ch. 21.2: Factors Common to the Adjudication of All Relative Visa Petitions, available at https://www.uscis.gov/sites/default/files/ocomm/ilink/0-0-0-3513.html#0-0-0-387

Direct Investment as an EB-5 Visa Path

 

With EB-5 regional centers being the most popular avenue for EB-5 visa applicants, many do not realize that direct investment as a path for obtaining an EB-5 visa holds many opportunities as well. In fact, the direct EB-5 investment pathway is underutilized among foreign nationals seeking an EB-5 visa. What is even more notable is that while the regional center program must be reauthorized by Congress, and thus is currently not a permanent option for seeking an EB-5 visa, the direct EB-5 investment option is a permanent law. This means that, absent some affirmative action by Congress to repeal the law, is the direct EB-5 investment pathway will always be available to immigrant investors.

Passive versus Active EB-5 Investment

Part of the appeal of the regional center program is that EB-5 regional centers allow EB-5 investors to take a more passive approach to investing funds. For many visa seekers, this is simply an easier way to invest, and that is understandable. Perhaps that is why over 95% of EB-5 visas granted each year are given to investors choosing to utilize the regional center program. However, for those who wish to utilize direct investment, it is not nearly as difficult as one might assume. It’s true that direct investment projects often require more involvement, but for many investors, that winds up being a very good thing. It is also possible to structure direct EB-5 investments as a type of passive investment.

A Multitude of Opportunities – Franchises

By using the direct EB-5 investment option, EB-5 visa applicants have a wider variety of opportunities to pursue. One of the best avenues is to become a franchisee for a brand well-established in the U.S. There is a huge benefit to investors who pursue this choice, as franchises make a great deal of information available to potential investors ahead of time (i.e. franchise disclosure documents and other public records). Compared to the information typically available through EB-5 regional center investments, the franchise route may offer a greater chance to evaluate success. In addition, franchising is regulated by both federal and state governments; in most cases far more so than passive regional center investments. Many franchises typically undergo regular audits and provide annual (or other regularly-scheduled) updates to investors. The investor also retains more control over the course of a direct EB-5 investment.

There are some drawbacks to using direct EB-5 investment as a path to the EB-5 visa, but many advantages also exist. The best advice is to have an experienced EB-5 visa attorney evaluate your particular situation. Call the expert EB-5 lawyers at David Hirson & Partners, LLP today to discuss your options with us.

 

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

Things to watch for in EB-5 extensions; contact an experienced immigration attorney at Hirson & Partners, LLP

3 Things to Watch in the Future of EB-5 Visas

The EB-5 Immigrant Investor Visa program begun in 1990 as a federal program to promote job and economic growth here in the U.S. by tying foreign investors and capital investments in qualifying projects in the U.S. These foreign investors were then given a path to a green card in return for their investments into the U.S. economy which are directly tied to creating at least 10 full-time positions for U.S. workers. While it was little-used at first, during the Great Recession of the late 2000s and early 2010s, EB-5 investment funds became an important source of capital funding during a time when bank financing and other types of traditional credit dried up.

Since 2015, Congress has repeatedly attempted to modify the EB-5 program in one way or another, but has thus far fallen short of implementing any change and has simply extending, the program as is. The latest extension, in March of this year, has caused U.S. developers and investors to look elsewhere for funding to complete projects. The following are three things to watch for (and be aware of) as we wait to see how the EB-5 program changes in the near future.

Some developers will hesitate on future projects.

Although this is to be expected, there are developers this year who may wait to initiate projects they had hoped to fund by EB-5 investors. Some of these developers are simply waiting until the end of the current six-month extension to see if Congress extends the EB-5 Regional Center Program yet again or substantially raises the minimum investment amounts, while others are looking elsewhere for project funding. The good news is, developers with projects already underway using EB-5 funds are typically still operating with a “full steam ahead” mentality.

Projects may seek less EB-5 funds in the future – or not.

Some projects are likely to seek less EB-5 funding out of caution of the changing program; however, EB-5 remains a consistent and important driver of these projects. The percentage of development funds that originate from the EB-5 program tends to grow larger as the scope of the project grows larger. In relatively small development projects, such as those with a total budget under $40 million, it is not uncommon to see only around 20-30% of funds coming from the EB-5 Visa program.

Existing projects may scramble to raise EB-5 funds during this latest extension.

Some good news for investors is that developers currently in the midst of fundraising for projects are viewing this latest extension as a golden opportunity to get investors in at the current minimum amounts before there is any chance of the U.S. government raising the minimum investment amounts. Investors who can get their required funds and application materials in order prior to the end of the current extension are encouraged to do so, since it could be the last chance to invest at the $500,000/$1,000,000 levels. While the construction industry is optimistic about the future of EB-5, now may be the best time to invest, since it is unclear when the U.S. government will increase the investment amount for the program or enact changes to the program. Failure to extend the EB-5 Regional Center Program could be fatal to EB-5 Regional Center project investors who have not yet been admitted as conditional permanent residents

One of the best decisions a potential EB-5 investor can make is to partner with an experienced EB-5 attorney working on their behalf, long before their application is drafted or filed. Whether you are committed to the EB-5 program or just considering it as one of many avenues, call David Hirson & Partners, LLP. Our attorneys are experienced immigration attorneys who have helped a multitude of investors successfully navigate the EB-5 and other U.S. visa programs.

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

EB-1, EB-2, EB-3: Learn the Difference in These Immigrant Visas [Infographic]

As a law firm focused on corporate and family immigration, our highly qualified immigration lawyers are often asked to explain the differences between different visas, specifically various business immigration visas. While all employment-based visa programs allow skilled foreign nationals to come work in the U.S., there is a vast difference in requirements between the EB-1, EB-2 and EB-3 visas. Indeed, there can be very significant differences even within the subcategories contained within each visa type. Scroll down to see some of the major similarities and differences between the EB-1, EB-2, and EB-3 visa programs.

EB-1 Visa Program

The EB-1 visa program is aimed at priority workers. There are 3 subcategories under the EB-1 visa: EB-1A (aka EB-1-1) for those with extraordinary abilities, EB-1B (aka EB-1-2) for outstanding professors and researchers, and EB-1C (aka EB-1-3) for multinational managers or executives. In general, all EB-1 applicants (regardless of subcategory) are often distinguished experts in their field, whatever that field may be, or those who are top management in their company and are trying to transfer to the U.S. The EB-1 visa can be one of the most difficult EB visas to obtain. Very few are admitted into the U.S. under the EB-1A and EB-1B subcategories, while slightly more applicants, in comparison, are successful in meeting the somewhat lesser standards required under EB-1C. Successful EB-1 applicants typically show extraordinary ability in the arts, sciences, education, or athletics. Alternately, they may be in the top management of a company with operations both in the U.S. and abroad. An applicant under the EB-1 program must demonstrate their willingness and capacity to continue their work and/or research in the U.S.

EB-2 Visa Program

If a potential applicant has an advanced degree or significant expertise in their area of work or study, they may apply under the EB-2 visa program. The requirements for this program are not as stringent as EB-1, although the benefits are also not as great (especially for applicants from China and India). There are two main subcategories for EB-2: those with an advanced degree and those with exceptional ability. Most applicants under the EB-2 visa program must have their petitions submitted by a potential U.S. employer, but some may self-petition under the National Interest Waiver (“NIW”) subcategory.

EB-3 Visa Program

The EB-3 visa program is the lowest qualification program out of the three covered in this blog post. While the good news is that qualifying under EB-3 is easier than EB-2 and EB-1, the bad news is that there is significant backlog for nationals applying from certain countries, waiting 10 years or more for visa availability. There is also no self-petition for an EB-3 visa. This category covers skilled workers with 2 years of training or work experience, unskilled workers, and professionals.

To learn more about these and other employment and investment visa programs, contact the corporate immigration lawyers at David Hirson & Partners, LLP. Our experienced lawyers will work with you from choosing the right program all the way through submission of the petition and beyond.

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

“Round the World” Investment Immigration

The landscape of U.S. immigration is changing more now than it has in the past 25 years. One area that is markedly feeling change is corporate investment immigration. The idea that successful foreign business people can bring their business talents, expertise, and funds into the U.S. has a certain logical appeal; this has been the guiding thought behind the EB-5 immigrant investor program. For a $500,000 or $1,000,000 investment into a qualifying business/project, a foreign national and his/her immediate family members could be granted a green card in exchange for creating at least ten full-time jobs in local U.S. economies. The overwhelming majority of foreigners who have participated in the EB-5 program were born in mainland China. Unfortunately, these Chinese nationals have created a significant backlog in the EB-5 program, extending the processing times for all EB-5 applicants. Long processing times, in turn, make the program less appealing to foreign nationals who are considering various immigration programs for their families.

 

There have been a number of additional factors causing the downfall of the EB-5 immigrant investor program in China (even though this program has been creating thousands of much needed full-time jobs for hard-working U.S. workers). First (as mentioned above), the large number of Chinese-born applicants have utilized all of their available federally-mandated allotment of EB-5 visas each year. Second, there is a lot of uncertainty in the program due to Congress repeatedly trying, and subsequently failing, to “modernize” and make permanent the EB-5 visa program. The EB-5 industry was unable to unify in a strong front to bring the program and industry together to create a better program. Third, the Chinese national government has made it extremely difficult to move large amounts of funds outside of China (no matter the reason).

 

Due to the federally mandated limit on the number of EB-5 visas that are allotted each year, with a secondary limit on how many EB-5 visas are allotted per country as well, Chinese applicants who apply for an EB-5 visa today are now facing a wait time of approximately ten to fifteen years before they can bring their families to the U.S. This extended wait time has led to the rise of a certain phenomenon that we can call “’round-the-world immigration”: where a Chinese national “immigrates” to a county that is: 1) “selling” that country’s citizenship for money (which the U.S. does not do), and then 2) uses this second country’s citizenship to apply for an E-2 investor treaty visa (since China does not have E-1/2 treaty status with the U.S.). (An E-2 visa applicant makes a “substantial investment” into a U.S. company, boosting the U.S. economy. Note: “substantial investment” is not defined and is based on the facts of each case, including the ration of investor equity the whole of the business.)

 

While this process is lawful, it is possible that U.S. consular officers will deny Chinese immigrants who apply for a trade treaty visa by way of a Grenada (or similarly “purchased” citizenship) passport when the applicant is clearly Chinese and not Grenadian. The other complication here is that Chinese citizens legally forfeit their Chinese citizenship as soon as they obtain citizenship in another country. As such, the “foreign” Chinese national would be required to have a Chinese visa in his/her Grenada passport in order to be legally present in China to meet with the U.S. consular officer. When the “foreign” Chinese national is unable to present the immigration officer with a valid Chinese visa, the officer could then deny the E-2 petition and not allow the Chinese national into the U.S. based upon not having jurisdiction to adjudicate the case.

 

After facing such a denial, and not having many other options, many foreign nationals and their families decide to give up immigrating to the U.S. They are effectively giving up on their “great” American dream and end up not being allowed the chance to add to our nation’s strong entrepreneurial spirit. Our nation’s President seems to be set on making all immigration into the U.S. frought with hurdles that take years (if not decades) to overcome. In the meantime, other nations are welcoming entrepreneurial immigrants into their borders with open arms.

 

Should the U.S. be making it so difficult for good, law-abiding, hard-working, enterprising, and successful immigrants into our “Nation of Immigrants”? It may be that we should all take a moment to remember where we and our forefathers came from, a majority of whom crossed the oceans looking for a better life for their families and business ventures in a new land. What state would our nation be in if not for the immigrants who came to the U.S. and contributed to the rich fabric of our nation and its economy? One could argue that the U.S. is missing out on great contributions from people who have been successful in a wide variety of areas in the nations of their birth.

 

Contact an Experienced Immigration Lawyer

 

There are critical nuances in each of these visa categories and it is extremely important to obtain expert advice and planning. If you are contemplating bringing foreign investors into your business, or you are a foreigner planning to open a business in the U.S., consult with our experienced immigration lawyers at David Hirson & Partners, LLP. Our team of immigration experts will expertly guide you along the immigration path that best meets your business and family needs.

 

www.Hirson.com                             Tel: +1 (949) 383-5358                                    info@Hirson.com

 

* The information provided in this article is for informational purposes only and is not legal advice. Please consult with a licensed attorney regarding your specific circumstances.

 

David Hirson, Esq. is the managing partner of David Hirson & Partners, LLP. David has over 35 years of experience in the practice of immigration law.  Although he practices in almost all areas of immigration law, including family law immigration and all aspects of business law immigration, he is internationally recognized as an expert in EB-5 investment immigration law. He has been certified as a Specialist in Immigration and Nationality Law by the State Bar of California, Board of Legal Specialization continuously since 1990. As an immigrant from South Africa to the U.S., he is personally aware of what immigrant families and entrepreneurs go through.

 

This article was originally published in the June 18, 2018 issue of the Orange County Business Journal.