On February 7, 2019, U.S. Representatives Zoe Lofgren (D-CA-19) and Ken Buck (R-CO-04) introduced H.R. 1044 ‘Fairness for High-Skilled Immigrants Act of 2019.’ The bill will amend the Immigration and Nationality Act (INA) to eliminate the per-country caps to all employment-based immigrant visa categories, including EB-5.
The EB-5 Regional Center trade organization IIUSA has analyzed the proposed bill and its effects on EB-5 investors and investments. IIUSA concludes that:
“While the elimination of per-country caps may make sense for some categories, the elimination of the per-country cap for EB-5 will be to the detriment of the [EB-5 immigrant investor] program,” stated IIUSA Executive Director Aaron Grau. IIUSA data concludes the elimination of per-country cap for EB-5 will eliminate any new EB-5 economic development investment to the United States for at least 10 years.
“In the past year alone, the EB-5 program is responsible for over $3 billion in new economic development and over 100,000 jobs in the United States. Not excluding EB-5 from this proposal will put this type of new investment at risk,” stated Grau.
A few of the key points found in IIUSA’s detailed analysis and report on the effects of removing per-country caps include:
1) Removing the per-country cap would make the EB-5 visa immediately unavailable for all existing EB-5 investors from the countries that are not currently experiencing the visa retrogression issue – including Brazil, South Korea, and the rest of the world (except for China and Vietnam). Hypothetically, in the first five years of the elimination of the per-country cap, we forecast that over 96% of the annual EB-5 visa allocation would be used by the existing Chinese EB-5 visa applicants and their qualified family members while the remaining 4% would be consumed by the existing EB-5 visa applicants and their family derivatives from Vietnam.
2) Without the per-country cap, all existing EB-5 investors from all countries other than China would face a longer wait to receive conditional permanent residency. Existing EB-5 investors from Vietnam and their family members would need to wait three (3) to five (5) years longer for their EB-5 visas; while existing Indian EB-5 investors and their qualifying family derivatives would face an increase of six (6) years or longer for their EB-5 visa waiting time.
3) New EB-5 investors from all foreign countries would have to wait for 11 years or longer to receive their conditional permanent residency if the per-country cap is eliminated. In contrast, under the per-country cap, these investors (except for the ones from China and Vietnam) and their qualifying family members currently can proceed for an EB-5 visa as soon as their I-526 petition is approved by USCIS, without any additional delay.
4) Removing the per-country cap would shorten the EB-5 visa waiting time for new EB-5 investors from China from 16 years to 11 years, a reduction of 31%.
IIUSA first reported on this proposed bill here: https://iiusa.org/blog/legislation-eliminate-per-countrylimits-employment-based-visas/
David Hirson & Partners, LLP (“DHP”) is a proud member of IIUSA. DHP’s experienced team of immigration professionals are here to help you determine the best plan for you and your family’s immigration to the U.S. Contact DHP here or call us at +1-949-383-5358 to schedule a consultation.
Many key factors decide whether an E-2 visa petition will meet investor and individual guidelines. The E-2 visa is oriented around establishing a new business venture or purchasing a pre-existing business and requires the investor to put their own money at risk to make a commercial profit. Only foreign nationals from countries with a Treaty of Trade and Commerce with the U.S. will qualify for the E-2 visa program, whether the application is for a business owner or their employee. So, how does someone determine ahead of time if they are a good candidate to qualify for an E-2 visa?
The Two Types of Investor Visas
There are really two types of investor visas: the EB-5 and the E-2. The EB-5 visa is discussed in depth in many other articles on our site, but to give a quick rundown: the EB-5 visa was created to attract foreign capital investment into the U.S. and provide a path for those foreign investors to obtain green cards. The EB-5 requires a personal investment of either $500,000 or $1,000,000 and there is congressional talk of raising the minimum investment amount in the near future. Each EB-5 investor must prove their investment created at least 10 full-time permanent jobs for U.S. workers. Most investors under the EB-5 program are not actively involved in the investment business.
The E-2 visa program, on the other hand, allows an investor to start or purchase a business, and bring themselves and key employees into the U.S. An E-2 visa holder is either an owner of the business or someone employed by the business in a supervisory, executive, or very highly specialized skilled position. In other words, the applicant must play a very important role in the business enterprise such that they could not easily be replaced by a U.S. worker. There is no job creation requirement for E-2 applicants.
Owners and employees must be citizens of a limited number of countries with a Treaty of Trade and Commerce with the United States. Citizens of other countries are strictly ineligible for the E-2 visa. (While E-2 requirements look at an individual’s country of citizenship, EB-5 requirements look at an individual’s country of birth. Chinese and Indian nationals should note that while they do not qualify for E-2 visas and the current EB-5 backlog for applicants from these two countries is long, there are other U.S. immigration options and pathways available to them.) If the individual is an employee, the business owner must prove that they are essential to the business because they are a manager, an executive, or possess very specialized skills. If the applicant is the owner, they must prove various factors pertaining to the extent of their investment, the nature of their business, and their intentions in the U.S.
Owners of a business venture will need to show that they either own at least 50% of the business or own a smaller percentage but are employed by the business as a manager or executive. They will also need to show USCIS that the economic impact of the business will be significant, and that the business will be providing a tangible good or service to the U.S. public.
Finally, it is important to note that while there are set general requirements for E-2 visas, each U.S. consulate that adjudicates E-2 visa applications will have differing requirements and standards. It is crucial to consult with a licensed immigration attorney regarding each consulate’s E-2 standards.
Finding More Information
While the application process for an E-2 visa is complex (involving many case-specific issues and requirements), an applicant should have experienced legal representation working on their behalf in order to ease the process. At David Hirson & Partners, LLP, our attorneys are highly experienced and have helped a multitude of investors successfully obtain an E-2 visa in order to enter the U.S. Click here to contact us or call (949-383-5358) to schedule a consultation with us.
Để có thể phục vụ quý vị khách hàng Việt Nam tốt hơn trong ngành EB-5 nói riêng và lĩnh vực định cư Hoa Kỳ nói chung, David Hirson & Partners, LLP rất vui mừng thông báo sự ra mắt phiên bản tiếng Việt của trang web của chúng tôi! Dấu mốc quan trọng này minh họa cho cam kết không ngừng của chúng tôi với khách hàng Việt Nam trên khắp thế giới. Quý vị có thể truy cập trực tiếp trang web tiếng Việt tại https://www.hirsonimmigration.com/vi/ hoặc nhấp vào biểu tượng cờ Việt Nam ở phía trên bên trái của trang chủ.
Với nền kinh tế đang bùng nổ và đội ngũ nhân tài bao gồm các chuyên gia, nhà đầu tư, và doanh nhân thành công, nhu cầu định cư Hoa Kỳ của người Việt Nam đã tăng trưởng mạnh mẽ trong thập kỷ qua. Chúng tôi tự hào phục vụ nhu cầu định cư của cộng đồng người Việt ở hai bên Thái Bình Dương qua việc hỗ trợ hàng ngàn nhà đầu tư EB-5 và gia đình họ đạt được thẻ xanh vĩnh viễn, tư vấn thành công các chiến lược định cư cho các doanh nghiệp tại Việt Nam mở rộng sang Hoa Kỳ, và giúp vô số gia đình Việt Nam đoàn tụ tại Mỹ thông qua chương trình bảo lãnh gia đình. Vui lòng liên hệ với công ty của chúng tôi ngay hôm nay tại email@example.com để lên lịch tư vấn và tìm hiểu thêm về các giải pháp định cư tiềm năng phù hợp với quý vị.
David Hirson & Partners, LLP’s Website is Now Available in Vietnamese!
To better serve our Vietnamese clients in the EB-5 and immigration industry, David Hirson & Partners, LLP is excited to announce the launch of the Vietnamese version of our website! This important milestone illustrates our continued commitment to our Vietnamese clients around the world. You can now visit the Vietnamese translated site directly at https://www.hirsonimmigration.com/vi/ or simply click on the Vietnamese language flag on the top left of the homepage.
With a booming economy and a rich talent pool of entrepreneurs, investors, business people, and white collar professionals, Vietnam and its immigration needs have grown dramatically over the past decade. We are proud to serve the immigration needs of the Vietnamese community on both sides of the Pacific Ocean, including successfully helping thousands of EB-5 investors, advising businesses in Vietnam on expanding to the U.S., and countless families. Please contact our firm today at firstname.lastname@example.org if you’d like to schedule a consultation to learn more about potential suitable immigration solutions.
This article is copyrighted by ILW.COM and is republished here with permission.
The original article can be viewed here: http://discuss.ilw.com/articles/recent-issues/389787-december-31-eb-5-industry-misunderstands-retrogression
EB-5 Industry Misunderstands Retrogression
There is $3 Billion India EB-5 Opportunity:
India generated close to $500 million in EB-5 investments in 2018, and it is on track to generate $1 Billion in 2019 and $2 Billion in 2020. The Indian EB-5 market is a $3 Billion opportunity in the coming two years. USCIS published data on pending I-526 petitions showing that for the month of September 2018, India has already reached the number one position with 284 petitions compared to 165 from China and 137 from Vietnam.
Those Who Misunderstand Retrogression Will Miss the Opportunity:
- Most of the EB-5 industry misunderstands how retrogression works. As a result, some in the EB-5 industry believe that the roaring number one EB-5 market in India will end as soon as retrogression hits sometime middle of 2019. They also incorrectly believe that as soon as retrogression in Indian EB-5 market begins, all waiting Indians will stand in line behind the Chinese who are standing in a 15+ year long line. Nothing could be farther from the truth.
- Misunderstanding of how retrogression works is rampant in the EB-5 industry—Those who misunderstand retrogression will miss out on the $3 billion opportunity in Indian EB-5 market.
How Does Retrogression Work – Different Gates & Different Lines:
- Each employment and family category has a total per year world limit, and an additional per country limit. There are separate gates for separate countries for each category of visa: People for each country who have applied for a given visa category are standing in separate lines by the date of their application.
- To figure out retrogression:
- First Step: first each country is allotted its per country quota.
- Second step: If as a result of the first step the entire per year for the world is not exhausted, remaining visa numbers are allotted to the oldest applications regardless of the country.
- Analogy: Think of there being separate gates for each country and those born in that country line up at the gate for their country. The length of the line for each country is different for each visa category. For example, the line at the gate for Chinese EB-5 applicants is very long, and the line for British EB-5 applicants is very short. When the per country quota is allocated, the countries with long lines budge a little but those with short lines gallop forward. The lines at the gates for each country for a given visa category move differently.
- Further, as long as retrogression time for a country is shorter than the processing time for the application, it has no impact at all on the time it takes to get immigration benefits.
- Lastly, the impact of a waiting time for a visa category is viewed differently by applicants of different countries because they compare the waiting time for that category with waiting times for other categories.
Example 1: EB-5 Waiting Times for India & China:
- For EB-5 it is 10,000 visas/year and approximately 700 visas/country. Chinese EB-5 applicants are standing at a DIFFERENT gate in a DIFFERENT line than Indian EB-5 applicants.
- To figure out retrogression, First Step: first each country is allotted its per country quota. For example, for EB-5, only China, India and Vietnam have more than 700 applications pending. Then first 700 oldest of Chinese applications, 700 oldest of Indian applications and 700 oldest of Vietnamese applications are allotted the visa numbers. Then applicants from all other countries are allotted their visa numbers. If as a result of the first step the entire per year for the world is not exhausted, remaining visa numbers are allotted to the oldest applications regardless of the country. For example, if 6,000 visas are allotted in the First Step for EB-5, 10,000-6,000=4,000 visas remain to be allotted. They are allotted to the oldest EB-5 applications waiting regardless of the country—which in this case would be the oldest Chinese EB-5 applications.
- Result: Indians will not be in the line behind the Chinese—as with all categories, each country has its own line. For example, by using 700 visas will move the priority dates of the tens of thousands of Chinese waiting in line by barely few months, but the same 700 visa numbers will make the Indian priority dates gallop forward by more than a year. Therefore, hundreds of Indians will move ahead of the Chinese who have been waiting longer than those Indians.
- Further, as long as retrogression time for a country is shorter than the processing time for the application, it has no impact at all on the time it takes to get immigration benefits. As long as the retrogressed time for India is less than 2 years, it will make no material difference to applicants if their processing time is average of 2 years. We expect the flow of Indian EB-5 capital to remain unaffected by retrogression until there are 12 consecutive months of retrogressed times higher than processing times–which has been the case for capital flows from China and Vietnam when the countries retrogressed.
- Lastly, the waiting times for the EB-2 and EB-3 categories for Indian—the primary alternatives to EB-5—are 25 years and 75 years respectively looking forward. So even when EB-5 waiting times for India rise eventually to 5, 10 or 15 years EB-5 will continue to remain an extremely attractive option—unlike for the Chinese for whom the EB-2 and EB-3 times are much shorter.
Example 2: EB-3 Waiting Times for Philippines and India:
- You can more clearly see the principle of “Separate Gates and Separate Lines for Each Country” by looking at other employment and categories which have been hitting their per country quotas for over a decade.
- The priority dates for EB-3 are as follows as per December 2018 visa bulletin: India is Jan 2010, China is Dec 2015, Philippines is August 2017. So, the wait times are India 8 years; China 3 years and Philippines 1.5 years. This is because the number of Indians standing in the Indian EB-3 line is very large as compared to the number of Philippines nationals standing in the Philippines EB-3 line. This is true even though both Philippines and India have been in retrogressed territory for many years. Philippines nationals applying for EB-3 do NOT stand in line behind the Indians who have been waiting for years—each country has its own separate gate and a separate line.
- India is a $3 Billon opportunity over the next two years. India is 50+% of the entire world EB-5 market and growing at 100% per year. For all the reasons listed, retrogression will not affect capital flows of EB-5 capital out of India in that time frame. Do not miss out on the $3 Billion Indian EB-5 opportunity.
This article is copyrighted by ILW.COM and is republished here with permission.
The original article can be viewed here: http://discuss.ilw.com/articles/recent-issues/389787-december-31-eb-5-industry-misunderstands-retrogression
On Wednesday, December 12, 2018, the Trump administration unilaterally decided to reinterpret an agreement from 2008 between the United States and Vietnam. This 2008 agreement discussed the proper procedure for how to deport a Vietnamese national from the United States with a final order of removal. However, the agreement specifically stated that these procedures would not apply to any Vietnamese national who entered the United States prior to July 12, 1995. This date was chosen as it was the first time the United States and Vietnam officially re-established diplomatic relations after the end of the Vietnam War. Its purpose was to protect those who had fled as refugees from the Vietnam War, and therefore do not see Vietnam as their home anymore.
Now, the Trump administration is re-interpreting this agreement, without consulting Vietnam, to mean that the U.S. government is not completely unable to remove people to Vietnam, even if they arrived before 1995. While details have not been provided at this time, it looks like the Trump administration is specifically looking to apply its reinterpretation to those with final orders of removal, or those who have certain criminal convictions.
Since we are not entirely sure how the Trump administration plans to implement this reinterpretation, we suggest that individuals who are a part of the following groups exercise caution:
1) Anyone with a final order of removal from an immigration judge should be careful to follow all rules, laws, and regulations in an effort to avoid interaction with law enforcement. Those with final orders AND criminal convictions should be especially cautious.
2) Anyone who has criminal convictions should avoid international travel in an abundance of caution. CBP officers could potentially reinterpret eligibility for removal and initiate removal proceedings, even if the convictions are old.
Should you have further questions regarding this policy, click here or call (949-383-5358) to schedule consultations to discuss your specific case, or provide “Know Your Rights” information regarding ICE Officers ability to enter your home. If anything dramatically changes regarding this policy, we will issue another update.
David Van Vooren, Partner at David Hirson & Partners, LLP, recently authored an insightful article published in the China ImmiMarket Magazine. The article is titled: “How U.S. Franchises Can Support L-1A and EB-1C Visas” and has been published in Chinese in order to educate those individuals from China who are interested in combining franchise opportunities with their U.S. immigration plans.
(English version is available upon request.)
David Van Vooren works extensively on the EB-5 immigrant investor program and also has substantial experience advising foreign investors and entrepreneurs on U.S. immigration matters relating to L-1 and E-2 cases that involve startup companies in the U.S. David also speaks and reads Mandarin Chinese with a high level of proficiency, and he previously worked in the Shanghai office of an international law firm.
David and our knowledgeable team of attorneys are available to discuss:
- how to grow your franchise by using foreign capital or
- how your U.S. immigration options can be paired with running your own franchise business.
Call (949-383-5358) or complete the Contact Us Form to schedule a consultation.
Last Friday (December 7, 2018), President Trump signed a 2-week “stopgap” (a.k.a. extension) spending bill that allows the U.S. government to continue operating until December 21, 2018. This extension also includes allowing the EB-5 regional center program to continue until December 21st. Congress and President Trump are still negotiating what to do after December 21st. There are a number of issues that are being debated right now, including funding to build a wall on the U.S. Mexico border.
While we do not expect EB-5 to be discussed or debated in Congress right now, we do expect the EB-5 regional center program to be continued to some point in time next year. We will let our readers know more as soon as we learn more.
We urge you to contact us with any further questions you may have about the EB-5 immigrant investor program or any other U.S. immigration program. Our team of successful corporate immigration attorneys can help you.
Originally published in the November 19, 2018 edition of the Orange County Business Journal
The U.S. economy is going strong now with businesses on the rise, unemployment at a record low, and more open job positions than there are applicants. We can see many businesses implementing expansion plans on a regular basis these days, with such growing businesses searching for good sources of capital. The purpose of this article is to introduce the idea that it can be worthwhile and even cheaper to use non-U.S. sources of capital in order to expand your business in the U.S.
One good way of accessing foreign sources of capital is tying the foreign capital investment to immigration pathways. The U.S. offers a few different avenues of immigration that combine a foreign individual’s dreams of coming and starting/expanding a business here on U.S. soil. Let’s go over a few key points of the E-2, L-1, EB-1C, and EB-5 visas:
E-2 Treaty Investor Visa
An individual may be issued an E-2 Treaty Investor visa if:
- The individual or the individual’s business is from an E-2 Treaty nation and at least half of the business must be owned by nationals of the treaty nation.
- The individual or the individual’s business has made or is in the process of making a substantial investment (generally in excess of $100,000) in a business in the U.S.
- The individual is either the principal investor who will direct and develop the business in the U.S., or the individual is an executive manager or employee with special skills essential to the company.
- The investment is not the individual’s sole source of income.
E-2 Treaty Nations are countries that have treaties of trade and commerce with the U.S. There are a lot of E-2 treaty nations. Unfortunately, countries such as China and India are not E-2 treaty nations and therefore do not qualify for E-2 Treaty Investor visas. (That being said, individuals from China or India could potentially obtain citizenship from other E-2 treaty nations that have Citizenship by Investment (“CBI”) programs and then the Chinese or Indian national could subsequently qualify for an E-2 visa.)
L-1 Intracompany Executive/Manager Transferee Visa (Nonimmigrant Visa)
An L-1 Intracompany Executive/Manager Transferee visa is for those foreign nationals who have plans to be employed in the U.S. by a parent, subsidiary, affiliate, or branch of a foreign business where the foreign national had already been working overseas for at least one year (within the three preceding years). The foreign national must have been employed in an executive, managerial, or specialized knowledge capacity for the overseas employer and subsequently be employed in an executive, managerial, or specialized capacity in the U.S. company.
The L-1 visa allows a qualifying foreign national to enter the U.S. relatively quickly to start working. It is important to note that the L-1 transferee does not need to do the same work as he or she was performing overseas; this means that the foreign transferee who managed a factory in China could potentially come and manage a new franchise business in the U.S. given that the U.S. franchise will become an affiliate or subsidiary company of the Chinese factory. This visa is only a temporary work visa.
EB-1C Intracompany Transferee Visa (Immigrant Visa)
The EB-1C (a.k.a. EB-1-3) visa is the permanent version of the L-1 visa which leads to U.S. permanent resident status with a green card. The requirements for this visa are very similar to the L-1 executive/manager visa requirements, except that there is no “specialized knowledge” qualification category. The foreign national must be coming to the U.S. on the basis of a permanent job offer to work in a management or executive capacity. It is important to note that while this visa leads to a foreign national obtaining a green card, the applicant must wait for an EB-1C visa number to be available.
In some circumstances where a company is just starting its operations in the U.S., a foreign manager or executive can apply for an L-1 visa first and then submit an EB-1C visa application after a year or so.
EB-5 Immigrant Investor Visa
The EB-5 visa has become very popular in recent years as a pathway for foreigners to invest in the U.S., create full-time jobs for U.S. workers, and bring their families to the U.S. There are no managerial, executive, or specialized knowledge requirements for this visa because the EB-5 requirements focus on the foreign national investing either $500,000 or $1 million (depending on the investment’s location and minimum investment amounts subject to change soon) and that investment must be proven to have created at least 10 full-time U.S. jobs per EB-5 investor.
There is currently a huge backlog for EB-5 visa applicants from China, Vietnam, and India. This has led EB-5 applicants from these countries to explore other corporate immigration pathways such as the L-1/EB-1C visa pathways that require foreign nationals to come and manage a sizeable business in the U.S.
It is at this point that some foreign nationals start to look at investing in and running their own franchise business in the U.S. Some brand-name franchises are now cooperating with foreign investors who are looking to tie their family’s immigration dreams with a dream of running a business in the U.S. The L-1/EB-1C visa pathways can become a viable tool that allows U.S. businesses to expand by working with foreign nationals who become managers of the expanding or new U.S. business.
The attorneys at our law firm, David Hirson & Partners, LLP, specialize in successfully strategizing and filing these corporate immigration visas and many other visa types. Come find out if your U.S. business expansion plans can work alongside the E-2, L-1/EB-1C, or EB-5 visa pathways.
David Hirson, Esq. has more than 35 years of experience in corporate immigration law, specializing in business and investment immigration. David is the founding and manager partner of David Hirson & Partners, LLP (“DHP”), and he is internationally-recognized for his decades of success in investment immigration. DHP’s attorneys have over 70 years of combined experience in advising individuals, start-ups, large corporations, hospitals, and universities in navigating complex areas of employment immigration.
The firm’s business and employment-based immigration practice provides a full range of services, including EB-1-1(A), EB-1-2(B), EB-1-3(C), National Interest Waivers (NIW), EB-2, EB-3, EB-5, H-1B, E-1/2, L-1(A)/2(B), H1B, and other immigrant and non-immigrant visas. DHP is one of a select few firms that also specialize in immigration for franchise businesses who have foreign partners/managers. David’s firm also works closely with individuals and HR departments to understand their needs and customize an immigration plan that surpasses their expectations.
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: email@example.com Website: www.Hirson.com
WHERE YOU CAN FIND US
Orange County Office
1122 Bristol Street
Costa Mesa, CA 92626
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Seattle, WA 98121
Phone: +1 949.383.5369
David Hirson & Partners, LLP has over 30 years of experience in corporate, business & investment immigration law. Our business immigration practice provides a full range of services, including a nationally recognized EB-5 investment immigration practice.