Florida Immigration Law Blog: Colombo & Hurd

USCIS Issues L-1A Visa Policy Guidance for Manager and Executive Visas

The L-1A visa for managers is an essential immigration tool for multinational businesses with operations in the United States. The visa is considered nonimmigrant in nature and can allow a U.S. based employer to bring key personnel, such as executives and managers, to work in a U.S. office. Furthermore, businesses considering commencing U.S. operations can also bring a manager or executive to the United States for the purposes of opening or establishing an office. However, like all visas, the manager or executive must meet certain characteristics and qualifications to be eligible for the L-1A visa.

USCIS Calls for Public Comment as it Considers EB-5 Program Changes

The EB-5 visa program has been under sustained political attack from Representatives and Senators in Congress. These attacks have not gone unnoticed. Recently, the SEC and FINRA have announced enforcement actions and an enforcement focus on EB-5. Furthermore, United States Citizenship and Immigration Services has announced its intention to redraft some of the regulatory and policy aspects of the EB-5 program.

Multiple SEC Actions Show the Importance of Working with an EB-5 Lawyer

The EB-5 visa provides hard-working and entrepreneurial individuals a pathway to U.S. citizenship while also benefiting U.S. Citizens and workers. The program provides foreign nationals a pathway to a green card and citizenship provided that they make a qualifying investment into a U.S. business and create at least 10 jobs. For Eb-5 projects not located in a targeted employment area (TEA), a minimum investment of $1 million is required. However for projects in a TEA, an investment of $500,000 is sufficient. Thus, an EB-5 project in a TEA is often a good fit for individuals in a country with strict capital controls such as China.

Supreme Court Vacancy May Alter Legal Calculus on Deferred Action Executive Order

Many expected that upcoming Supreme Court termto bring bad news for undocumented immigrants who were eligible for deferred action under President Obama’s DAPA and DACA executive orders. Many of these individuals who arrived in the United States alone or accompanied by their parents before their 16^th birthday have long lived in fear of removal from the U.S. and deportation to their country of citizenship. Many of these immigrants came from nations in Central and South America that were grappling with severe upheaval due to the changes in the global economy and domestic instability. In many of these countries, violence elevated above the rule of law and unexplained disappearances are not uncommon. In any case, many immigrants fled their original homes in search of safety and a chance to start a better life.

SEC, FINRA provide increased scrutiny concerning EB-5 Regional Centers & Private Placements

In recent years the EB-5 program developed from a little-known and infrequently used path to a permanent green card to a program that is attracting demand so intense that the program is exhausting its visa allotment. In 2014, EB-5 visas for Chinese nationals were exhausted in August due to significant interest from Chinese investors. This was the first time in the program’s 24-year history that visas ran out for any country. In 2015, continuing demand from China resulted in the visa allotment for Chinese nationals to be exhausted even earlier.

E2 Visa Approved through US Consulate in Rome, Italy for Purchase of Retail Store

U.S. Government Implementing Amendments to Visa Waiver Program (VWP)

A healthy and non-overly restrictive immigration policy is essential to the health of the American economy and the country’s current and historical aim of attracting the best and the brightest including people with a desire to work hard to build a better life. This goal also extends to the free-flow and exchange of ideas facilitated through travel by executives, scientists, and other influential individuals. These highly accomplished individuals may wish to visit the U.S. to speak at conferences or seminars, negotiate business deals, sign contracts, and work on highly sophisticated or technical matters concerning an array industries and interests including high tech startups, biomedical firms, and aerospace engineering interests – to name a few.

Extension of EB-5 Visa Policy Until September Provides Additional Opportunities to Secure U.S.Citizenship

The EB-5 investor visa program has long provided a win-win solution for entrepreneurial-minded foreign nationals and the citizens and permanent residents of the United States. At the most general level, the EB-5 program allows for investment into new, or in some cases existing, businesses that create a certain number of jobs can provide the foreign individual a permanent green card. Furthermore, a spouse and certain children can also obtain derivative green cards through the program. Thus, an entire family can receive green cards through an investment that will also benefit the family’s new home.

Despite Extension, Congressional Battle Over EB-5 Visa Program Reform Continues

When we last discussed on the ongoing saga concerning EB-5 visa and its reauthorization, the program had been reauthorized by Congress in its current form. Thus, no changes were made to the program that has been in operation since the early 1990s. Furthermore, the program was not expected to be subjected to any amendments, alterations, or other changes until after the expiration of its reauthorization on September 30, 2016. However, like most items handled by recent Congresses, the handling of issues and concerns has been extremely unpredictable and subject to erratic and unexpected changes.

ICE Agents Conduct Weekend Deportation Raids

For years immigrant who have fled violence and instability in Central America and other nations have worried about immigration enforcement action due to their undocumented status. For many immigrants who came to the United States to provide a better, safer life for their children one of their biggest fears is a raid by government officials and being removed, or deported, from the United States. Parents of young children also fear the pre-dawn at-home raid that can, at minimum, further traumatize children and those who fled the use of such tactics in their home nation.

What Methods Can A Regional Center in the EB-5 Program Use to Evidence Job Creation?

EB-5 visa investors are required to file an initial I-526 petition where, among other items, they set forth a business plan that shows how the EB-5 project will create or preserve at least 10 full-time jobs for Americans. After a successful initial petition the individual will receive conditional green card. But the immigrant-investor must also file an I-829 petition to remove those conditions and convert the card to a permanent green card. One of the things that must be shown in the I-829 petition is that a sufficient number of full-time jobs were created.

What is the Typical Process Faced by an EB-5 immigrant-Investor?

The EB-5 visa was established in 1990 to encourage investment and job creation in the United States. While the program got off to a slow start during its first two decades of existence, demand for U.S. green cards through the program skyrocketed in 2014. In that year and for the first time ever, the cap on visa through the program was reached. Roughly 85 percent of the requests for visas came from wealthy Chinese investors. In 2014, Chinese investors accounted for 90 percent of the EB-5 visas issued. In 2015, the program hit its cap in April – again due to strong demand from wealthy Chinese investors.

SEC Is Closely Monitoring EB-5 Activities As Evidenced By Action Against South Florida Asset Manager

Intending immigrant-investors and others familiar with the EB-5 visa investment program are well aware that while the program provides a much-needed alternative source of investment capital, it is replete with legal requirements involving not only the immigration aspect of the investment, but also the financial considerations and transactions that give life to the program. Thus, aside from satisfying the regulations, standards and requirements set forth by United States citizenship and Immigration Services (USCIS), EB-5 investments and the developers handling them must also maintain full compliance with securities regulations as set forth by the Securities Exchange Commission (SEC).

Miami’s Panorama Tower Begins Accepting EB-5 Investments

In Miami, Orlando, and throughout Florida many opportunities exist for immigrant-investors to make investments into the EB-5 and regional center program. While returns on an EB-5 investment are typically modest, the real return on an EB-5 investor’s investment is a permanent U.S. green card for themselves and for qualifying family members. However, investors should always consult with an experienced EB-5 lawyer prior to making any investment because all investments into the EB-5 program must be “at-risk” meaning that either a gain or a loss can be realized. An unwise EB-5 investment can result not only in the loss of the investment funds, but also a lost opportunity to secure a permanent green card and a path to citizenship for the investor and the investor’s family.

The Importance of Understanding How EB-5 Project Type Can Affect Job Creation Requirements

Potential or intending immigrant-investors who have researched the EB-5 visa process likely know that aside from making a sufficient and qualifying investment into a U.S.-based new commercial venture, the investment must also create or preserve at least 10 full-time jobs for U.S. citizens. If these jobs have already been created when the immigrant-investor files his or her I-526 petition, they must be evidenced in the filing. If the jobs are not already in existence, the immigrant-investor must present a business plan that explains how these job creation targets will be satisfied. Then, when the immigrant-investor files his or her I-829 petitions to remove the conditions on his or her green card he or she must be able to prove that the required jobs were actually created and that they are still in existence.

Must EB-5 Projects be Financed & Carried Out through a Regional Center?

Most developers are aware of the EB-5 program and its ability to provide sources of foreign investment and funding. Many wealthy foreign individuals seeking a pathway to a green card and U.S. citizenship are also aware of the program and its benefits. Finally, a number of U.S. citizens benefits from the program by gaining a full-time job from the jobs created by the investment. In many ways the EB-5 visa program is a win-win-win proposition for all involved parties.

Senator Flake Introduces Competing EB-5 Regional Center Reform Plan

We have written extensively about the expiration of the EB-5 visa and regional center programs last September 30th and the temporary reauthorization measure that provided the program with a much-needed lease on life. However, the extension was merely a short-term measure that did not address many of the concerns regarding the EB-5 program. While some critics have attacked the program as being wasteful, others have called for the expansion of the EB-5 program since it brings capital investment to the United States. While many people get caught-up in the minutia of the program, it is important to recognize that the EB-5 program allows some of the world’s best and brightest to invest in the United States while making the country their permanent home. This program attracts entrepreneurs and other successful job creators to the United States from abroad which is likely to reinforce the American entrepreneurial spirit while creating much-needed full-time jobs for American citizens. Senator Jeff Flake’s reform is one of many bills competing to become part of the final EB-5 reauthorization and reform bill. We have already looked at competing proposals from Senator Paul and from Senators Leahy and Grassley. Here, we will look at some of the changes this reform would bring.

Data Shows That in Chinese Immigrant-Investor Use of EB-5 Program, TEA is Favored

Since the EB-5 visa and regional center program’s passage in the early 1990s, the EB-5 program has provided an important pathway to citizenship for foreign nationals while simultaneously benefitting those who are already citizens of the United States. In exchange for a qualifying investment that creates or preserves a certain number of jobs, an immigrant investor and his or her family can receive their green card granting legal permanent residency. While the green card is conditional until the conditions on it are satisfied and removed, the program remains an important pathway to citizenship and provides important benefits.

Senator Paul Introduces Invest in Our Communities Act as Competing Bill to Grassley-Leahy EB-5 Reform Measure

While the EB-5 visa program was reauthorized on a limited basis prior to its September 30, 2015 expiration, that reauthorization is only temporary through December 11, 2015. Furthermore, longstanding questions regarding program reform were not answered or even addressed by the short-term measure. Thus, while intending immigrant investors and immigration practitioners were happy to see the program extended, it was abundantly clear that this extension merely marked the start of the work on EB-5 and not the conclusion of the reauthorization process.

Expected Reform May Make Obtaining a Green Card Through EB-5 More Difficult for Chinese Investors

In August, a State Department official warned intending immigrant-investors and other EB-5 stakeholders that no more EB-5 visas would be issued until the new government fiscal year in October. This marked the first time in the history of the EB-5 program that the program had run out of its allotment of 10,000 visas for the year. In August, it seemed as though time would bring clarity to the status and direction of the EB-5 and regional center programs.

Start Your Journey to Live & Work in the U.S.