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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  • Will the new EB-5 regulations be repealed by Congress?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 Will the new EB-5 regulations be repealed by Congress?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 attorneys help family receive travel ban waivers and approval to enter the U.S.

David Hirson & Partners Guides Client Through Heightened Vetting Process to Receive Travel Ban Waiver

Earlier this summer, David Hirson & Partners, LLP (“DHP”) successfully helped an EB-5 investor client’s entire family of nine obtain travel ban waivers. These waivers were required in order for the family to be issued immigrant visas and enter the U.S.

Our client received approval of their EB-5 petition back in 2017 and attended their consular interview in Abu Dhabi in 2018. During their interview, the entire family was asked to complete Form DS-5535 (except the minor children under 14). This is an enhanced vetting form that requires the disclosure of the following for each applicant:

All: Past 15 years of: Past 5 years of:
Passport numbers & country of issuance Travel history Telephone numbers
Names birthdates of immediate family members Home addresses Social media usernames/handles
  Employment History Email addresses

After completing the requested forms, this family’s case remained “pending in administrative processing” for a few months, at which point DHP was retained to file a travel ban waiver packet for the family. Our firm compiled and filed the travel ban waiver packet based upon the family’s and investment’s given circumstances.

A travel ban waiver packet is evaluated based on three factors:

(1) entry is of national interest to US (here the EB-5 program);

(2) denying entry would cause undue hardship (here to the family, petitioner, and project); and

(3) entry would not pose a threat to national security or public safety.

Less than six months after DHP submitted the travel ban waiver packet, the consulate emailed the client for continued processing, asking for updated medical exams and passports, along with new DS-260 submissions. The applicants were also required to come to the embassy to retake the oath. The client and family members completed everything that was asked of them and they were all approved to enter the U.S.

All DHP attorneys and staff share a common goal of helping immigrants lawfully navigate the U.S. immigration system. Contact our office to schedule a consultation to see how we can help you and your family’s immigration dreams.

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

Major EB-5 Regulations coming in November

DỰ LUẬT MỚI CHO CHƯƠNG TRÌNH ĐẦU TƯ EB-5 HIỆU LỰC TỪ NGÀY 21 THÁNG 11 NĂM 2019

Ngày 24 tháng 7 năm 2019, Cơ Quan Nhập Tịch Và Di Trú Hoa Kỳ (USCIS) đã công bố chính thức dự luật mới cho chương trình đầu tư EB-5. Dự luật mới sẽ bắt đầu có hiệu lực từ ngày 21 tháng 11 năm 2019. Đây là những sự thay đổi cực kỳ quan trọng cho chương trình đầu tư di trú từ những ngày đầu khi quốc hội khai sinh ra chương trình này năm 1990. Chúng tôi sẽ cung cấp thêm nhiều chi tiết cụ thể hơn sau, và những thay đổi quan trọng bao gồm:

1) Tiêu chuẩn mới về số tiền đầu tư: Số tiền đầu tư tối thiểu sẽ là 1 triệu 8 trăm ngàn đô la Mỹ ($1,800,000). Số tiền đầu tư tối thiểu cho những dự án nằm trong khu Trung Tâm Vùng (TEA-Targeted Employment Area) sẽ là chín trăm ngàn đô la Mỹ ($900,000). Tuy nhiên, dự luật mới với những thay đổi giành cho trung tâm vùng sẽ có thể gây khó khăn lớn trong việc thành lập những dự án thoả mãn cho việc thành lập trung tâm vùng.

2) Sửa đổi tiêu chuẩn cho Trung Tâm Vùng: Tiêu chuẩn cho trung tâm vùng sẽ được quyết định bởi USCIS và sẽ có khả năng những tiêu chuẩn sẽ được thu hẹp lại gắt gao hơn do sự xác nhập tổng quát vị trí địa lý của khối kinh tế. Nếu dự án bị giới hạn vào “vùng trực tiếp”, khả năng dự án phải lên một triệu tám $1.8.

3) Quy định mới cho việc duy trì ngày đáo hạn (priority date): Nếu sau này phải nộp hồ sơ I-526 mới, đương đơn sẽ được quyền duy trì ngày đáo hạn bằng ngày hồ sơ I-526 cũ được chấp thuận. Tính linh hoạt này sẽ bảo vệ nhà đầu tư mà đơn I-526 đã được chấp thuận nhưng chưa có khả năng hội tụ đủ điều kiện vì những tình huống ngoài sự kiểm soát của họ (ví dụ trung tâm vùng bị giải tán). Sự linh hoạt này cũng cho phép nhiều sự sáng tạo trong phương pháp kiến tạo phuơng thức đầu tư sau khi nộp hồ sơ mà không gây ảnh hưởng tới ngày đáo hạn.

4) Sự linh hoạt cho đơn I-829: Người thân trong gia đình hưởng lợi ích phát sinh bắt buộc phải tự nộp hồ sơ I-829 nếu bản thân họ không nộp cùng lúc khi đương đơn chính nộp đơn I-829.

Dự luật bắt đầu có hiệu lực từ ngày 21 tháng 11 năm 2019, 120 ngày kể từ ngày đuợc phát hành trên thông cáo của Liên Bang, và việc thông hiểu thông hiểu những điều luật mới ngày rất quan trọng. Nhưng hồ sơ nộp đúng cách trước cột mốc này sẽ được cứu xét dưới dự luật đương thời. (Lưu ý: Xin lưu ý rằng mặc dù 120 ngày cho phép trước khi dự luật mới có hiệu nghiệm, sẽ rất có khả năng chương trình EB-5 sẽ được phê chuẩn tiếp (trước ngày 30 tháng 9 năm 2019) với những đạo luật mới nữa mà có thể sẽ đối nghich với những đạo luật sắp thông qua nêu trên.

120 Ngày kể từ hôm nay, dự luật mới sẽ hiệu nghiệm. Cùng với đội ngũ nhân viên dày dạng kinh nghiệm và quá trình làm việc chặt chẽ với những đối tác kinh doanh, chúng tôi đã hỗ trợ quý thân chủ để nộp hàng ngàn những hồ sơ EB-5 trong vòng hai (2) năm qua, giúp quý thân chủ đi trước những điểm mốc nhạy cảm. Hãy liên hệ với chúng tôi ngay để đảm bảo hồ sơ của quý khách được nộp trước khi dự luật mới có hiệu nghiệm.

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.

Recent partner featured in Wall Street Journal

DHP Partner Discusses EB-5 Insights with Wall Street Journal

On March 5, 2019, the Wall Street Journal published an article about the EB-5 investment immigration market in Vietnam. Phuong Le, Partner at David Hirson & Partners, LLP (“DHP”) and An Nguyen, Director of Business Development in Vietnam for DHP, provided timely insights for this article.

The article describes how the EB-5 market has shifted from a China-dominant world to now a Vietnam-dominant world. But, EB-5 stakeholders know that the Vietnamese EB-5 market is already shrinking. Where will the EB-5 industry go next? Without meaningful reforms to the EB-5 world, the EB-5 industry will face a shrinking future.

You can view the article, or contact us for more details about this article.

Contact us directly or call (+1-949-383-5358) to speak with an experienced team of immigration attorneys to discuss which immigration path may best fit you and your family’s immigration plans.

Congress and President Trump extend Eb-5 regional program for two more weeks.

U.S. Congress and President Trump Extend the EB-5 Regional Center Program for 2 Weeks

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.

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

 

“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.

David Hirson & Partners and Baker Tilly Capital: EB-5 and Foreign Wealth Management Seminar

A panel discussion for legal practitioners and service providers on navigating EB-5 program requirements and critical investment, tax and estate planning considerations for U.S. inbound clients.

Tuesday, June 12, 2018

4 – 7 p.m.

Location: The Westin Bonaventure Hotel & Suites

404 S Figueroa Street Los Angeles, CA 90071

Complimentary seminar

Note: CLE credit is pending approval.

 

With 10,000 green cards per year issued to participants in the U.S. EB-5 program, many immigrant investors are obtaining U.S. permanent residency. But before your client boards a plane and relocates to the U.S. there are critical investment, tax, estate and wealth planning considerations. Making informed decisions at the onset will protect your clients’ quality of life and that of their family members when they arrive in America.

Join Baker Tilly Capital and David Hirson & Partners for a valuable overview on investing through the EB-5 program and global mobility considerations for foreign nationals immigrating to the United States, as well as new green card holders.

Attendees will gain a thorough understanding of the continually changing EB-5 program and the many tax and personal financial planning challenges faced by foreign nationals immigrating to the U.S. The goal is to help advise high net-worth individuals on understanding the larger impact of their EB-5 investment and relocation decisions, and most importantly provide them with solutions to mitigate risk and improve success.

Discussion points to include:

  • EB-5 overview and legislative update
  • The role of the broker dealer in EB-5 transactions, complying with U.S. securities laws and the rules of professional ethics
  • Common NOIDs, RFEs, and adjudication trends
  • Overcoming investor hurdles (source of funds, money transfer, etc.)
  • New markets

This panel discussion is geared towards legal practitioners and service providers seeking to help make their high net-worth clients’ transition to the U.S. smoother and more economically advantageous.

Register for this event now.

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

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

 

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

 

Job Creation Requirements

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

 

Timing

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

 

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

 

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