Posts

Thoughts about the current situation for the EB-5 Immigrant Investor Program

Thoughts About the EB-5 Immigrant Investor Program’s Current Situation

This is an opinion piece adapted from ILW’s article, “Wishful Rumors,” that was published in an email blast on November 15, 2019.

November 21, 2019 marks the beginning of following new rules for the EB-5 Immigrant Investor Program. Some rumors have been circulating about whether anyone will try to stop these new rules. The rumored ways of stopping these rules focus around each of the three parts of the U.S. government. We believe that it is highly unlikely for anyone to stop these new rules from being enacted, so we should all be preparing to adjust to the new requirements.

1. Judiciary

Some have wondered if anyone will try obtaining a Temporary Restraining Order (“TRO”) from a judge that would stop the new rules from being put into place. Attorneys familiar with the process of obtaining a TRO say that this is unlikely since a judge typically only grants a TRO if it looks like there can be changes made to whatever is being restrained. It is highly unlikely that any changes would be made on these new rules.

2. Executive

The only way anyone in the Executive Branch could stop the new rules is if there was a true national emergency, i.e. a war breaks out or a natural disaster causes extreme damage. Even the President is lawfully unable to issue an Executive Order that affects these new rules.

3. Legislative

The Legislative Branch is the only branch that could change these new rules. But there needs to be a strong group of legislators who are willing to take the lead and change these rules through either a Continuing Resolution (“CR”) or a new statute. This path has proven to be deadlocked for years. Many are hopeful that Congress will eventually pass long-term changes to the program, but everyone is unsure of when this will actually come to pass.

One bill that is currently being considered by Congress, S.2778 – Immigrant Investor Program Reform Act seems to be gathering some good support. We are hopeful that Congress will eventually pass legislation making the program stronger for the future.

If you have any questions about the new changes to the EB-5 immigrant investor program, or you have questions about your immigration plans, contact us today to schedule a consultation with one of our attorneys.

Tel: +1-949-383-5358                      Email: info@hirson.com                                Website: www.Hirson.com

Questions we're asking about EB-5 right now

EB-5 Legislative Update: Mid-September

This post addresses 3 ideas that are currently being discussed in the EB-5 world:

  • Will President Trump do something to “save” the EB-5 program?
  • Will the new EB-5 regulations be repealed by Congress?
  • Will Congress finally enact new EB-5 legislation?

These are all good questions to consider, but the simple answer to all of them is: No. Let’s take a look at each question in a little more detail:

1. Will President Trump do something to “save” the EB-5 program?

Many people look at Trump’s interests and track record with real estate development and believe that he understands and supports real estate deals across the U.S. Trump is not in a position to “save” the EB-5 program as President. Not even his use of executive orders can change the Administrative Procedure Act (APA). The APA is the government’s rules on how to change its own rules. The APA is a set process that takes time in order for any change to be made.

2. Will the new EB-5 regulations be repealed by Congress?

Senator Rand Paul from Kentucky has been trying to get Congress to use the Congressional Review Act (CRA) to overturn or stop the new EB-5 regulations. While there have been many attempts to use the CRA since 1996, there have only been 3 times when the CRA was successfully used to overturn new government regulations. 3 CRA overturns in 23 years is not a very high percentage of overturns.

3. Will Congress finally enact new EB-5 legislation?

While the EB-5 industry continues its efforts to lobby Congress for new EB-5 legislation, there is no real result in sight yet from these efforts. Everyone can see how divided the U.S. Congress is, especially when it comes to immigration issues, including EB-5. With no consensus in Congress, there can be no legislative changes for the EB-5 program either.

The conclusion from all of this is:

  • Be prepared for a Continuing Resolution (CR) to most likely be passed by Congress which allows the EB-5 Regional Center Program to continue unchanged from September 30, 2019 to November 21, 2019; and
  • Be prepared for Congress to pass another CR in order for the EB-5 Regional Center program to continue after November 21, 2019.
    • Note: Direct EB-5 investments and petitions can continue without needing any CR from Congress. Direct EB-5 investments will have to follow the new EB-5 regulations after November 21, 2019 though.
  • Be prepared for the new EB-5 regulations which will come into effect on November 21, 2019.

Contact us with your questions and to speak with one of our immigration attorneys to discuss the best immigration pathway for you and your family.

Tel: +1-949-383-5358                            Web: www.Hirson.com                                          Email: info@hirson.com

EB-5 investor visa updates coming in November

EB-5投资移民项目新法案将于2019年11月21日生效

Original English version

美国公民及移民服务局(USCIS)宣布新的EB-5投资移民法案将在2019年7月24日正式公布,并于2019年11月21日开始生效。这是自1990年美国国会创立此法案以来的第一次重大变革。我们公司将会尽快提供更多该法案的细节,但新政策主要包括:

  1. 新投资额:最低投资额为1,800,000美金。位于目标就业地区(TEAs)的项目最低投资额为900,000美金。但是目标就业地区认定过程的可能使该目标区域的大多数项目难以获得TEA认证。
  2. 更新的目标就业地区(TEAs)认定:目标就业地区(TEA)的认定将由美国公民及移民服务局(USCIS)决定,并且由于对连续人口普查的聚集和合并区域的限制,可能认定范围将会越来越窄。如果投资项目仅限于单个或者“直接相邻”人口普查区域,则可能导致大多数项目的投资额达到1,800,000美金。
  3. 优先日期保留的新规定: 如果投资申请人以后必须提交新的I-526申请,他们将能够保留其先前被批准的I-526申请的优先日期。这种灵活性可以保护投资人已经获得了1-526申请的批准,但是由于他们无法控制的情况(例如区域中心终止)可能会使其资格收到损害的情况。这种灵活性还允许在提交投资计划中的一些创意的转换,而不会危及到优先日期。不会将主申请人或投资人的优先日期赠送或者转移给衍生受益人。
  4. I-829灵活性: 如果投资人自己的I-829申请中没有包含其衍生家庭成员,那么衍生家庭成员必须在I-829阶段提交他们自己的申请。

重要的是了解这项新法案将于2019年11月21日生效,即自联邦公报发布之日起的120天。根据现行的EB-5规定,在此之前 “适当提交请愿书” 将被裁定。(备注:请注意,鉴于法案生效前有120天的空档期, EB-5投资计划可能会被重新授权(在2019年9月30日之前),新的改革可能会是从美国公民及移民服务局通过一项新的重新授权的法规。

在新法案生效前,我们有120天的时间。我们专业的EB-5团队在过去两年的时间里已经递交了数千份EB-5投资申请,并与我们的合作伙伴/客户密切合作,在满足不同时限的要求下,成功地为他们提交了EB-5的申请。我们建议现有的合作伙伴和客户立即与我们联系,以确保在新法案于2019年11月21日生效之前正确的提交所有案例。

 

电话: +1-949-383-5358              电子邮件: info@hirson.com       网站: www.Hirson.com

 

11/21/2019 부터 시행될 EB-5투자이민 프로그램의 새로운 규정

Original English version

미국 이민국(USCIS)은 2019년 11월 21부터 시행되고 내일 (2019 년 7 월 24 일) 발간될 새로운 EB-5 규정을 발표했습니다. 이는 1990 년 미국 의회에서 창안된 이래로 이 프로그램의 첫번째 중요한 변화입니다. 저희 로펌은 곧 더 자세한 내용을 제공할 예정이지만 주요 변경 사항은 다음과 같습니다:

1) 신규 투자 금액: 최소 투자 금액은 180 만 달러입니다. TEA (Targeted Employment Areas) 에 위치한 프로젝트의 투자 금액은 최소 900,000 달러입니다. 그러나 TEA 지정 프로세스의 변경은 TEA 지정 자격을 얻기위한 대부분의 프로젝트들을 매우 어렵게 만들수 있습니다.

2) 수정 된 TEA 지정: TEA 결정은 USCIS 가 담당하며 인접한 인구 조사 구역을 집계하거나 결합하는 데 한계가 있으므로 훨씬 줄어들 것입니다.  프로젝트가 단일 또는 “바로 인접한”인구 조사 지역이면, 대부분의 프로젝트 자금은 180 만 달러가 되어질 것입니다.

3) 우선 날짜 보유 위한 새로운 규칙: 나중에 I-526 신청서를 새로 접수해야하는 경우, 신청자는 예전에 이미 승인되어진 I-526우선 순위 날짜를 유지할 수 있습니다. 이러한 유연성은 I-526 청원이 승인된 투자자를 보호하지만, 통제가 불가능한 상황 (예 : 지역 센터 해지)으로 인해 자격이 위태로워질 수 있습니다. 이러한 유연성은 또한 우선 순위 날짜를 위태롭게하지 않으면서 접수한 후에 투자 전략에서 창의적인 전환을 가능하게 합니다. 그러나 우선 순위 날짜를 주요 신청자 / 청원자로부터 그들의 배우자나 자녀들에게 양도할 수 없습니다.

4) I-829 유연성: 투자자의 가족은 투자자의 I-829 청원서에 포함되지 않은 경우 I-829 단계에서 본인의 I-829 청원서를 제출해야합니다.

이 새로운 규정은 연방 등록부에서 발행한 날로부터 120 일 후인 2019 년 11 월 21 일에 발효될 것임을 이해하는 것이 중요합니다.  그전에 “적합하게 접수된 청원서”는 현행 EB-5 규정에 따라 판결될 것입니다. (참고: EB-5 개정안이 효력을 발생하기 전에 120 일간의 유예기간이 주어진 상황에서, EB-5 프로그램이 (2019 년 9 월 30 일 이전에) 국회를 통해EB-5 프로그램이 USCIS 가 발표한 개정법안과는 다른 내용으로 재승인될수 있는 가능성도 배제할수 없기때문에 조심스럽게 상황을 지켜봐야하겠습니다).

우리는 이제 새로운 규정이 효력을 발생하기까지 120일의 시간이 있습니다. 우리 그룹은 지난 2년 동안 수천 건의 EB-5 청원서를 제출했으며 EB-5 사례를 성공적으로 접수하기 위해 저희의 파트너들 / 고객들과 긴밀히 협력해 왔습니다. 현재 저희의 파트너들 및 고객들은 새로운 규칙이 2019 년 11 월 21 일에 발효되기 전에 모든 케이스가 적절하게 접수되도록 저희에게 즉시 연락 주시기를 당부 드립니다.

Tel: +1-949-383-5358                      Email: info@hirson.com                Website: www.Hirson.com

DHP Partner, Phuong Le, Speaks at IIUSA Conference in Washington, DC

 Attorney Phyong Le speaks at IIUSA Conference in Washington DC

 

 

 

 

 

 

 

 

 

 

 

 

Attorney Phuong Le (left) – Partner at David Hirson & Partners, LLP  speaking at the IIUSA DC Conference May 7, 2019

Photo Credit: IIUSA

Earlier this month, Attorney Phuong Le, Partner at David Hirson & Partners, LLP (“DHP”) spoke at Invest in the USA’s (“IIUSA”) conference in Washington, DC (May 5-7, 2019). He spoke on the panel titled: How to Market to and Find Investors Already in the U.S.: E-2 and EB-5 and Other Visa Backlog Solutions. Alongside his other panel members, Phuong spoke about the E-2 Treaty Investor Visa and other U.S. immigration pathways for those seeking alternatives to the EB-5 visa. Phuong and the team of attorneys at DHP are experts with helping clients find the best immigration pathways for themselves and their family members.

One of the keynote speakers at the IIUSA conference this year was General David Petraeus, who called on all those in attendance to help ensure that everyone who served in the U.S. military are ensured employment opportunities when they leave the service. DHP is proud of and supports our military and veterans.

Of particular interest to DHP’s EB-5 clients, are the updated final action date estimates provided by Mr. Charlie Oppenheim, Chief, Immigrant Visa Control & Reporting Division, U.S. Department of State. EB-5 petitioners from Mainland China and Vietnam continue to face a long wait time. EB-5 applicants from India do not face a final action date yet but will most likely have a final action date starting in July 2019. Mr. Oppenheim also provided his “best case” and “worst case” predictions for EB-5 final action dates for October 2019:


IIUSA’s full report on Mr. Oppenheim’s remarks regarding EB-5 final action dates is available here. If you are an EB-5 investor seeking to understand more about final action dates and what this means for you and your family, we encourage you to contact DHP or your licensed immigration attorney for more information and guidance.

Lastly, DHP is proud of all of the hard work and perseverance put forth by the 2019 winners of the IIUSA Awards for Economic Achievement and those elected to serve in various IIUSA positions. Congratulations to all!

If you have any questions about investment/corporate immigration or other avenues to immigrate to the U.S., contact us to speak with our experienced immigration attorneys.

Missed EB-5 opportunities in India.

Article Discusses Potential Missed EB-5 Opportunities in India

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.

Conclusion:

  • 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

Financing the expansion of your business in the U.S. with Visas

Finance the Expansion of Your Business in the U.S. Through E-2, L-1/EB-1C, & EB-5 Visa Pathways

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.

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!

David Hirson, Esq. and Eric Dominguez, Esq. Recognized as 2018 Super Lawyers

David Hirson & Partners, LLP is proud to have two attorneys listed as 2018 Super Lawyers®. David Hirson, Managing Partner, and Eric Dominguez, Partner, have both been recognized by their peers and independent research as lawyers who actively work for the betterment of their clients and the legal profession. Both have been selected as Super Lawyers for multiple years in a row. Super Lawyers also recognizes Eric as a Southern California Rising Star under 40.

   
See the Super Lawyers listings. See the Super Lawyers listings.

Super Lawyers®, an affiliate of Thomson Reuters®, defines Super Lawyers as attorneys who contribute to scholarly writings, leadership positions, community engagement, etc. Super Lawyers® has a patented selection process which includes: 1) nominations by peer attorneys, 2) independent third-party research of each nomination, 3) peer evaluation by a highly credentialed panel of attorneys, and 4) final selection of top 5% to be Super Lawyers and only 2.5% of attorneys selected to be Rising Stars.

Congratulations, David and Eric!

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