Immigration Lawyer Blog

The Regression of EB-5 Investor Visas for China

China, USA Flag

Introduction

The purpose of this article is to inform the reader of the recent announcement that the China EB-5 category will, for the first time in the program’s history, become unavailable. While those pending within the program should be processed at the beginning of the next fiscal year, this announcement poses problems for future China EB-5 applicants. It seems likely that, without intervention from congress, the China EB-5 program may become oversubscribed and may experience a visa retrogression.

EB-5 Overview

The EB-5 immigrant program allows for lawful permanent residence in the United States through qualifying investment and job creation. The program offers investors a conditional two-year green card with the opportunity, at the end of those 2 years, to apply for permanent lawful resident status. To qualify, investors must be able to invest $1,000,000 into a new commercial enterprise or into a Regional Center. Investors may invest $500,000, instead of the $1,000,000, into a Targeted Employment Area (TEA).… Continue reading…

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2014 DOL Statistics for PERM Applications

Department of Labor logo image good resolution

The Department of Labor published statistics for cases filed in 2014, year to date.  The statistics can be found at this link: http://www.foreignlaborcert.doleta.gov/pdf/PERM_Selected_Statistics_FY2014_Q3TD.pdf.

Some interesting observations are PERM applications are down 7% from 2013 year to date.  The decrease in PERM numbers can either be attributed to the backlog or retrogression seen for China and India.  Its unlikely that a decrease in jobs is the reason as it appears that the department of labor jobs numbers have indicated a creation of jobs.  As an Immigration lawyer we get to hear a lot of feedback from Employers.  Unless there is a reason to extend the H1B numbers beyond 6 years, there is not as much motivation to file PERM Applications for Indian and China born Beneficiary’s.

Another interesting statistic is that India accounted for 21,447 or 55% of all applications.  China only accounted for 7% of the PERM applications.  Clearly, Indian PERM applications are the majority of the filings.… Continue reading…

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Factors In Proving An L1B Specialized Knowledge Petition

l1b visa

It’s no secret that L1 visas have been heavily scrutinized leading to increase requests for evidence and denial rates the last 5 or 6 years.  Approximately 50% of cases are receiving requests for evidence and as opposed to the 80+% historical approval rate there are 60% to 70% approval rates.  This is unfortunate given the shortage of available H1B visas due to cap restrictions and an improving job market.  As an immigration lawyer, it is frustrating when a client would like to pursue an L1 visa, their case looks to meet the requirements of an L1 visa, but we need to explain the increased scrutiny that will be imposed on the case due to harsher adjudications the last 5 or 6 years.  While the economy was in recovery mode from 2009 to 2012, it was not as much of an issue as most L1 workers are eligible for an H1B visa.  However, since the demand for H1B visas has recovered in 2013 and 2014, the alternative to an L1 visa may not be readily available.  Making an L1 visa work is the only option in many cases.  The American Immigration Lawyers Association (AILA) sent a freedom of information request to USCIS for a list of recent L1A and L1B appealed decisions.  AILA provided a summary of each case in which our immigration lawyers reviewed in detail and conducted our own research.  Our scope of research was to isolate some of the common denominators for approved cases and denied cases.  While adjudications are often inconsistent, we find this research to be very insightful.… Continue reading…

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Whether an E2 or L1 Capital Investment May Be Applied to an EB5 Green Card

EB5 Defined Generally In The Direct Investment Context

The Immigration and Nationality Act provides that an Immigrant Visa shall be made available when a foreign national invests or is in the process of investing capital, currently in the amount of $500,000 (for rural or high unemployment areas) or $1,000,000 into a new commercial enterprise and creates 10 full time jobs for US Citizens or Lawful Permanent Resident Holders (other than the investor’s spouse or children). There are numerous issues and factors that must be carefully examined for an EB5. But for purposes of this article we are narrowly examining whether an investor that invests in a business and receives an E2 or L1 visa and subsequently creates 10 full time jobs may apply the investment and job creation to an EB5 Green Card.

E2 Visa Defined

8 CFR provides that a foreign national of a Treaty Country may obtain E2 status when the investor:”(i) Has invested or is actively in the process of investing a substantial amount of capital in a bona fide enterprise in the United States, as distinct from a relatively small amount of capital in a marginal enterprise solely for the purpose of earning a living; (ii) Is seeking entry solely to develop and direct the enterprise; and (iii) Intends to depart the United States upon the expiration or termination of treaty investor (E-2) status.”

Its important to point out that unfortunately foreign nationals of India and China are not eligible for an E2 visa, which is a shame as there is very strong demand from foreign investors in these countries, which would be beneficial for the US economy.… Continue reading…

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DOMA Decision Takes Potential Sticking Point In Immigration Reform Out Of Play

DOMA Gay Marriage

Update: The U.S. Supreme Court recently overturned the 1996 Defense of Marriage Act, also known as DOMA.

The effect of DOMA on Gay Couples

In 1996, President Bill Clinton signed into law prohibiting the federal recognition of same sex marriage, which is referred to as the Defense of Marriage Act, or DOMA.  The consequences were the denial of federal benefits to married gay couples which may be received by heterosexual married couples.  Examples of the federal benefits are immigration, social security survivor, tax, insurance benefits among other benefits.

The new Supreme Court decision on DOMA and it’s immediate effect on Gay Couples

On June 26, 2013, the United States Supreme Court struck down DOMA in a 5-4 decision.  Shortly after, Secretary of the Department of Homeland Security Janet Napolitano issued a statement stating “effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”  On June 28, 2013 USCIS issued an approval on a same sex marriage green card case.… Continue reading…

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