Category: Immigration News Blog

Hypothetical U Visa

U-Visa Hypothetical

Two individuals, who both entered without inspection, marry.  The couple’s home is broken into two and thieves steal nearly 10,000 dollars in property. The homeowners cooperate with the police and, through their cooperation find the criminals. Are they eligible for a U-visa? The U Visa is a special non-immigrant visa available to the victims of crimes that occurred in the United States or territories. Aside from the location of the crime, the applicant must demonstrate that they “a) suffered substantial physical or mental anguish as a result of having been a victim of ‘qualifying criminal activity,’ b) possess credible and reliable information establishing that he or she has knowledge of the details concerning the qualifying criminal activity upon which his or her petition is based and  c) has been helpful is being helpful or is likely to be helpful to a certifying agency in the investigation or persecution of the qualifying criminal activity.”1 A qualifying criminal activity is defined as one, a combination of or an activity similar to, one of the following crimes: blackmail, incest, perjury, domestic violence, involuntary servitude, rape, extortion, kidnapping, sexual assault, false imprisonment, manslaughter, sexual exploitation, felonious assault, murder, abusive sexual contact, female genital mutilation, obstruction of justice, slave trade, held as a hostage, peonage, witness tampering or the attempt, conspiracy or solicitation to commit any of these crimes. Substantial Physical or Mental Anguish is defined as abuse that results in injury or harm to the victim’s physical person, or harm to the psychological soundness of the victim.2 There are many factors that are considered when evaluating the aforementioned details. These factors include but are not limited to “the nature of the injury; the severity of the perpetrators’ conduct, the severity of the harm suffered; the duration of the infliction of harm; any permanent or serious harm to appearance, health and physical or mental soundness, and any aggravation of a victim’s pre-existing conditions. No single factor is required and a series of acts may suffice, even where no single act meets the standard.”3

Summary

U Visas are available to aliens who are the victims of crimes that happened in the United States and have experienced substantial physical or mental harm. Furthermore, the applicant has to be willing to cooperate with police in the investigation of the crime. Many crimes qualify and the aforementioned list is in no way exhaustive. The qualifying crimes are typically violent, coercive or psychologically disruptive in nature. The most ambiguous part of U-Visas is defining substantial physical or mental abuse, as while many factors are considered, these factors can be subjective.  

U Visa Hypothetical Answer

Burglary, in of itself, does not specifically constitute any of the crimes on the aforementioned list. While the list is not exhaustive, the nature of burglary, as a crime, is not substantially similar to that list of crimes. Many of those crimes are violent or coercive in nature. To qualify for a U-Visa, then, the applicants must have also been the victim of another crime that would qualify. While the 10,000 dollars lost in assets is substantial, its worth is technically irrelevant because burglary does not qualify. Thus, scenario must be given more context, to narrow down the possibilities of other crimes that might have been committed during the burglary. If the couple was not present during the crime, then the likelihood of other qualifying crimes to have occurred are unlikely. Some after- the-fact crimes could have been committed. For examples, if the couple was blackmailed or threatened, after the crime by the thieves, to not report the burglary, they might claim blackmail or obstruction of justice. However, if the couple was home at the time of the burglary, then it seems rather likely that other crimes would have occurred simultaneously. If, for example, during the crime, the couple was assaulted (it would have to be a felony) or, held hostage and cooperated with the police, then they would qualify. If the couple was held against their will, they might qualify as being victims of false imprisonment. The scenario gives that the couple had cooperated with the police and that their cooperation has led to the apprehension of the criminals. The next step in this process would be to prove that the crimes, associated with the burglary, would cause physical or mental anguish. In the case of the couple being home during the burglary, the severity of the associated crimes would be without question. The 10,000 dollars, while not a qualifying factor, can demonstrate the nature and extent of the burglary. For the couple, the loss of significant assets while also being threatened or physically abused would certainly result in significant mental anguish.

U Visa Conclusion

Burglary would not constitute a crime that one could claim in a U-Visa application. However, other crimes that would seemingly occur during a home invasion or as a result of a burglary might.  Other circumstances may change the findings given above. For example, if one was inadmissible on other ground, they might have to file for an inadmissibility waiver.

Economic Impacts of Passing the DREAM Act

Since 2001, the Development, Relief, and Education for Alien Minors, or DREAM Act, has been stagnating in Congress. Essentially, this bill would grant conditional permanent residency to eligible immigrants of good moral character, who graduate from U.S. high schools and have lived in the U.S. for 5 continuous years prior to the bill’s enactment, contingent on the requirement that they attend college or join the military. Rather than examine the DREAM Act from an ideological perspective, this article will explore the economics of the DREAM Act; both the benefits in economic growth, as well as the overall cost of passing this controversial piece of legislation. Using data collected by the Congressional Budget Office, The Center for American Progress, and the North American Integration and Development Center (NAID) at UCLA, this article will highlight the positives and the negative aspects regarding the economic impact of this bill. Enacting the DREAM Act would have three major positive effects on the economy. First it would create more federal revenue, as more people paid into federal taxes and social programs. Second, it would create incentive for immigrants to become more educated, and educated people earn more money that can be spent on goods and services that benefit the economy. The third and final effect is that of higher educated workers paying more in taxes, that in turn goes into government programs. If enacted immediately, the Dream Act could grant conditional permanent residency to nearly 2.1 million undocumented youths. This large number of people entering the workforce would affect federal revenues in many ways, especially considering eligibility for some refundable tax credits, Social Security, and Medicare benefits would be inherent in the bill’s enactment. According to a study done by NAID, allowing these 2.1 million immigrants legal status would generate $3.6 trillion over a 40-year period. Social Security and Medicare benefits are a major point of contention in the DREAM Act debate. Since these benefits would become available to nearly 2.1 million people, it is necessary to examine how that number will impact the systems in place. Because the DREAM Act would affect a large population of relatively young people, their projected impact for the 2011-2020 period is extremely minor. Young people are generally healthier, and therefore require less medical care. The CBO used information form the Current Population Survey to project that only 0.2% of the population affected by the DREAM Act would qualify for Social Security in the 2011-2020 timeframe. Because of the overall low number of DREAM Act eligible people who would require Social Security or Medicare from 2011-202, the CBO estimates that the bill would boost Medicare outlays by $29 million, and Social Security outlays by $77 million1. Because of these increases, as well as the sustainability of the program as supported by application fees as determined by the Department of Homeland Security, the overall impact of the DREAM Act is estimated to reduce federal deficits by around $1.4 billion over the 2011-2020 period. Beyond the federal economic effects, the increases in legally authorized workers in the economy provided by enactment of the DREAM Act would also impact the national economy. The NAID report estimates that this could lead to income generation of nearly $3.6 trillion in current dollars2. Considering that the basis of the DREAM Act requires a certain level of educational attainment in order to eligible for conditional permanent resident status, the bill serves as an incentive for the attainment of the higher education. NAID estimates that if the DREAM Act is passed, around 100,000 immigrants would join the military, around 850,000 immigrants would attain an Associate’s degree, and nearly 1.2 million immigrants would attain at least a Bachelor’s degree. Of the nearly 1.2 million immigrants who would attain a Bachelor’s, around 34,000 would go onto a Master’s degree, and almost 12,000 would attain a Doctorate or first professional degree. This translates into federal revenue as more highly skilled workers enter into the workforce. When higher skilled workers enter the economy, they in-turn have more income to spend, and more income that will be taxed. According to the Congressional Budget Office report on the cost estimate of the DREAM Act, the bill would lead to increased reporting of employment income, which would add to the receipts from both social insurance taxes and individual income taxes3. Increased reporting would also lead to larger tax reductions by businesses for labor compensation, which would reduce profits. However, due to the corporate and non-corporate nature of businesses, these deductions would reduce both corporate and individual tax receipts, offsetting some of the increases that will occur4. According to the Joint Committee on Taxation (JCT), the overall impact on revenues would be a $2.3 billion increase in the 2011-2020 period. Although these figures paint a mostly positive picture of the economics of the DREAM Act, there are a few important caveats that should be mentioned. Although nearly 2.1 million immigrants will be eligible if enacted, estimates on the anticipated number of eligible immigrants who will successfully attain conditional permanent resident status say the number will be much lower. A 2010 report by the Migration Policy Institute claims that if current trends continue to mirror past trends, around 38%, or 825,000 eligible immigrants would successfully gain lawful permanent resident status5. Another major issue concerns what will happen after 2020, and in the future as DREAM Act participants become older and therefore more reliant on Medicare and Social Security. The CBO estimates that the bill would increase projected deficits by nearly $5 billion in at least one of the four consecutive 10-year periods starting in 20216, and there is a lot less specific data available as to what the long term consequences might be. In many ways, the short-term gains of the legislation make the DREAM Act extremely appealing to a slowly recovering global economy, but many feel that the economic uncertainties of the strain it could eventually place on social security nets is too great a risk. This is a common issue when discussing social policy changes, and can be counteracted with consideration. Regardless of the political opinions that encompass the current Congressional debate, or lack thereof, over the DREAM Act, there are obvious economic factors that must be taken into consideration. A bill that would introduce such a large number of lawful permanent residents to both our economy and our nation, should not be taken lightly. Moving forward, Congress must consider the implications of research such as that presented by the Congressional Budget Office when reviewing this historic and controversial piece of legislation. Sources Batalova, Jeanna, and Margie McHugh. “DREAM vs. Reality: An Analysis of Potential DREAM Act Beneficiaries.” Migration Policy Institute, July 2010. Carlos Guzman, Juan, and Raul C. Jara. “The Economic Benefits of Passing the DREAM Act.” The Economic Benefits of Passing the DREAM Act. Center for American Progress. Partnership for a New American Economy, Oct. 2012. Hinojosa Ojeda, Raul, Paule Cruz Takash, Gerardo Castillo, Gilmar Flores, Adriana Monroy, and Delroy Sergeant. “No DREAMers Left Behind: The Economic Benefits of Passing the DREAM Act.” (n.d.): n. pag. North American Integration and Development Center. University of California, Los Angeles, 1 Oct. 2010. Morancy, Jonathan, Melissa Merrell, David Rafferty, Mark Grabowicz, Kirstin Nelson, Kathleen Fitzgerald, and James Jin. “S. 3992, Development, Relief, and Education for Alien Minors Act of 2010.” Congressional Budget Office. N.p., 7 Dec. 2010. Sources http://www.naid.ucla.edu/uploads/4/2/1/9/4219226/b67_hinojosa_2010_no_dreamers_left_behind_6.pdf http://www.cbo.gov/sites/default/files/s3992.pdf https://www.americanprogress.org/issues/immigration/news/2012/10/01/39746/passing-the-dream-act-for-our-economy/ http://www.renewoureconomy.org/wp-content/uploads/2013/07/economic-benefits-dream.pdf

EB-5 Immigrant Investor Program Visa

EB-5 Immigrant Investor Program Visa Overview Since the passage of the Immigration Act of 1990, the creation of the EB-5 Immigrant Investor program has been an accessible pathway to lawful permanent residence in the United States for qualifying investors. Participation in this program allows the USCIS to grant investors conditional two year green cards, and the opportunity to apply for permanent lawful residency at the end of two years. Approximately 10,000 visas are allocated annually to the specific EB-5 category, for the particular purpose of stimulating economic growth and creating domestic jobs. As such, qualified EB-5 applicants must be able to invest $1,000,000 in a new capital enterprise, or $500,000 in a Targeted Employment Area (TEA).  Investors must be able to present a strong business plan that reasonably accounts for the creation of 10 full-time jobs for U.S. workers. The benefits of such a program can be profitable for both the financial state of the investor, as well as the residential status of the investor and their derivative family members (spouses and unmarried children under 21 years of age). Although these benefits exist, the EB-5 is a high risk investment opportunity that should be approached with caution. Investment Options USCIS requires that investors must invest in new commercial enterprises, specifically ones established after November 29, 1990. These can comprise any for-profit activity created for the purpose of conducting lawful business, and include sole proprietorships, corporations, holding companies, joint ventures, partnerships, and business trusts (both publicly and privately owned). In certain cases investors may invest in commercial enterprises established before November 29, 1990, but only under the special circumstances of either (1) a serious restructuring or reorganizing that results in a new commercial enterprise, or (2) when an expansion through investment has increased the operation’s net worth or number of employees by 40 percent. Another option is to invest in a “troubled business,” or a business that has been in existence for at least two years, but in the 12-24 months prior to the investment, it has sustained a loss of at least 20 percent of its net worth. In these latter cases, investors must often prove that they preserved 10 jobs during their two year conditional period. While 10,000 EB-5 visa numbers are made available annually, 3,000 are allocated for investment in TEAs, and 3,000 are allocated for investors affiliated with Regional Investment Centers certified by the USCIS. A TEA must either be an area with 150 percent of the national average rate of unemployment, or be considered a rural area outside of metropolitan limits with a population of less than 20,000. Regional Center Programs are geographic pools of foreign investment, used to direct funds into job-creating businesses that facilitate economic growth. In the case of investment through a regional center, each investor must be able to prove he or she has created 10 full time jobs, either directly or indirectly, within the two year conditional time frame.  Regional Center projects generally place the funds at risk into the job creating enterprise in the form of either a loan or equity. How to Apply & Prove Your Investment Applying for an EB-5 visa can be incredibly tricky, particularly when it comes to documenting the source of investment capital. It is crucial that the applicant is meticulous in his or her documentation, and provide detailed descriptions in every aspect of the application. The first step is to file the I-526 petition, which is used for both individual applicants, and those interested in Regional Center projects. There are several major requirements that must be proven through the I-526 petition, as follows: New Commercial Enterprise:
  • A new commercial enterprise is defined as a commercial enterprise established after November 29, 1990. The investor must provide evidence that the applicant has invested in a “new” business enterprise operating under the jurisdiction of the United States, or has invested in an enterprise established before November 29, 1990, with two specific criteria. The previously established enterprise must be restructured in such a way that the result is a new commercial enterprise, or able to prove the investment has facilitated a 40 percent increase in either net worth or employment.
Target Employment Area:
  • Proof that the enterprise exists in a TEA, if the investor has invested $500,000.
Funds Are At Risk:
  • Escrow agreements, statements, documentation of fund transfers, loan agreements, or any other documentation that proves the applicant is has invested, or is in the process of investing the amount required for the location of the business.
Lawful Source of Funds:
  • Extremely detailed evidence that the capital was obtained through lawful means.
Job Creation:
  • Valid evidence that the enterprise will create either 10 direct or indirect full time jobs in which employees work a minimum of 35 hours a week, for those legally authorized to be employed in the U.S.
Active Management
  • Clear documentation that the investor is active and involved in the management and decision making process for the business (less applicable for Regional Center investment).
In order for an I-526 to be approved and for the applicant to be cleared for lawful conditional residence in the United States, it is imperative that the I-526 clearly proves each of these six requirements in great detail. Once the USCIS has approved the I-526, the investor will be granted conditional permanent residence. This also applies to the investor’s derivative family members. Becoming a Legal Permanent Resident The EB-5 is first and foremost a conditional two year visa, at the end of the two-year period, the applicant must file to remove the conditions and becoming a fully lawful permanent resident of the United States. 90 days before the two year anniversary of the approval of conditional permanent resident status, the investor must file the I-829 petition. The I-829 petition must satisfy four main requirements, as follows:
  • Evidence of the investor’s establishment and ongoing functionality of a commercial enterprise.
  • Financial statements or documentation to support that the applicant actively participated in the investment of the requisite capital.
  • Proof that the investor maintained and sustained the investment throughout the entire conditional period. This could mean bank statements, tax returns, invoices, receipts, contracts, or other kinds of documentation.
  • Concrete evidence that the investor created 10 full time U.S. jobs, or is anticipating the creation of the required jobs within a reasonable time frame.
Upon approval of the I-829 petition, the investor, as well as his or her derivative family members, will become fully lawful permanent residents. In recent years, the slow economy has prompted the USCIS to become more accommodating in its consideration of EB-5 applications.This accommodation, in addition to the positive economic growth seen in the last few years,has rendered the program more attractive. Since the creation of the program in 1990, no numerical caps for EB-5 visa numbers had ever been reached until very recently. On August 23, 2014, the Department of State Immigrant Visa Control and Reporting Division announced that the EB-5 preference category for Chinese applicants had become unavailable until the start of the 2014-2015 fiscal year, which began on October 1, 2014. The increased success of this program leads investors to hope that Congress will soon raise the cap on EB-5 applications, allowing more investors to contribute to economic growth in the U.S. through this special visa program. In 2012 alone, the EB-5 investment program contributed over $3 billion dollars to U.S. GDP, and supported over 40,000 jobs. If you are considering immigrating to the United States through an EB5 contact one of our experienced immigration lawyers.

I- 601A Renuncia

I-601A, Solicitud de Perdón Provisional por Presencia Ilegal Los inmigrantes que desean solicitar una visa de inmigrante o un ajuste de estatus para obtener la residencia permanente legal (también conocido como “tarjeta verde” o “green card”) deben ser admisibles.  Una razón común para ser declarado inadmisible es la presencia ilegal en los Estados Unidos, también conocida como presencia indocumentada.  Esto ocurre cuando un inmigrante entra a los EEUU sin inspección (es decir, cruzó ilegalmente la frontera sin visa) o sobrepasa su visa (es decir, entró legalmente con una visa, pero se quedó en los EEUU después que se le venció).  De acuerdo con la Ley de Inmigración y Nacionalidad, un inmigrante se considera generalmente inadmisible si él o ella: (I) estaba ilegalmente en los Estados Unidos por un período de más de 180 días pero menos de 1 año, voluntariamente salió de Estados Unidos antes del comienzo de un procedimiento bajo la sección 235 (b)(1) o del artículo 240, y de nuevo busca la admisión en los 3 años siguientes a la fecha de salida de tal inmigrante o expulsión, o (II) ha estado ilegalmente en los Estados Unidos por un año o más, y que una vez más busca la admisión dentro de los 10 años de la fecha de salida de tal inmigrante o expulsión de los Estados Unidos … Esto significa que si un inmigrante estaba ilegalmente presente dentro de los EEUU y se fue voluntariamente o involuntariamente al extranjero, él o ella no puede reingresar a los EEUU por un periodo de 3 o 10 años.  Esto se conoce como un impedimento de entrada, también conocido como “castigo” o “barra.”  En ciertas circunstancias, esta base de inadmisibilidad puede ser perdonada y el inmigrante ilegal no estará sujeta a este barra de 3/10 años si él o ella aplica para una Solicitud de Perdón Provisional por Presencia Ilegal (I-601A).  La barra de 3/10 años es común para las personas que cruzan la frontera de manera ilegal (entran sin inspección). Para calificar para un Perdón I-601A, el inmigrante debe cumplir con los siguientes requisitos:
  1. Estar físicamente presente en los Estados Unidos;
  2. Tener 17 años de edad o más en el momento de la radicación del caso;
  3. Ser el Beneficiario de una petición familiar aprobada en la cual una Visa de Inmigrante está disponible de inmediato;
  4. Tener una relación calificada con un ciudadano Americano o residente permanente legal. Después de la Orden Ejecutiva Presidencial de 20 de noviembre de 2014, un pariente calificativo incluye cónyuge, hijos e hijas de ciudadanos Americanos; los cónyuges, hijos e hijas de residentes legales permanentes, independientemente de su edad;
  5. Tener un caso de Visa de Inmigrante pendiente con el Departamento de Estado (DOS), que se relaciona con la aprobación de la Petición I-130 o I-360 y para el cual el inmigrante ya ha pagado la cuota de procesamiento de Visa de Inmigrante de DOS; y
  6. Creer que él o ella es, o será, inadmisible sólo por la presencia ilegal en los Estados Unidos durante una sola estancia.
Mientras que un inmigrante ilegal puede calificar para el Perdón I-601A, él o ella también debe demostrar dificultades extremas para el ciudadano Americano (cónyuge o padre/madre) o el residente permanente legal (cónyuge o padre/madre).  Esto significa que el inmigrante tiene que probar que si el ciudadano Americano/residente permanente legal debe mudarse al extranjero o si el inmigrante se traslada sin el ciudadano Americano/residente permanente legal, el ciudadano Americano/residente permanente legal sufrirá dificultades extremas.  Los factores que se consideran en la determinación de dificultades extremas incluyen la salud/consideraciones médicas, razones financieras y económicas, educación, consideraciones personales, lazos familiares, y condición del país extranjero.  En esencia, cuando más evidencia es presentada para demostrar las dificultades del ciudadano Americano/residente permanente legal, más fuerte va ser el caso.  La Orden Ejecutiva del 20 de noviembre de 2014 dirige a USCIS (Servicio de Ciudadanía e Inmigración de EEUU) para proveer directrices más claras para definir dificultades extremas con la intención de hacer la categoría I-601A más ampliamente disponible. Si un Perdón I-601A está aprobado provisionalmente en los EEUU, una entrevista para la Visa de Inmigrante se programará en el Consulado Americano del país de origen del inmigrante.  El inmigrante tendrá que viajar a su país nativo para asistir la entrevista consular.  Mientras viaje al extranjero, la barra de 3/10 años se activará.  Sin embargo, si la visa es aprobada, el inmigrante se le permitirá regresar a los EEUU como residente permanente debido al Perdón I-601A. Si el Perdón 601A es negado por el USCIS en los EEUU, el inmigrante no será sujeto a procedimientos de expulsión o deportación, siempre que no existan problemas complicados de criminalidad o seguridad nacional.  En general, las consecuencias son financieras. Un ejemplo del proceso de I-601A es cuando un inmigrante cruza ilegalmente la frontera entre México y Estados Unidos por sólo 1 vez.  Después de algunos años de vivir en los EEUU, el inmigrante se casa con un ciudadano Americano, tiene hijos que son ciudadanos Americanos, un trabajo, una casa y paga impuestos.  Ahora el inmigrante indocumentado quiere calificar para residencia permanente.  El cónyuge Americano presenta una Petición I-130, el cual es aprobado.  Sin embargo, el inmigrante no es elegible para ajustar su estatus debido a su presencia ilegal en los EEUU (es decir, cruzó la frontera sin inspección).  Para superar esta inadmisibilidad, el inmigrante aplica para un Perdón I-601A.  Después que el Perdón I-601A es aprobado provisionalmente en los EEUU, el inmigrante viaja a México para asistir a la entrevista en el consulado Americano y se le otorga la Visa de Inmigrante.  Ahora, el inmigrante puede volver a entrar en los EEUU como residente permanente con su tarjeta de residencia y vivir en los EEUU permanentemente y legalmente.  Esto es lo que comúnmente se conoce como “arreglar los papeles.” Tenga en cuenta que la presencia ilegal es sólo una de las muchas bases de inadmisibilidad.  Si usted es inadmisible por otras razones, o si está en el extranjero y se considera inelegible para una visa porque usted es inadmisible para los EEUU, puede haber otras exenciones de inadmisibilidad disponible.  Si usted piensa que usted es inadmisible, necesitará un abogado con experiencia para revisar y estratégicamente preparar su caso.  Póngase en contacto con Cipolla Law Group para hacer una consulta.

EB-5 Immigrant Investor Program Word

EB-5 Immigrant Investor Program Visa

Overview Since the passage of the Immigration Act of 1990, the creation of the EB-5 Immigrant Investor program has been an accessible pathway to lawful permanent residence in the United States for qualifying investors. Participation in this program allows the USCIS to grant investors conditional two year green cards, and the opportunity to apply for permanent lawful residency at the end of two years. Approximately 10,000 visas are allocated annually to the specific EB-5 category, for the particular purpose of stimulating economic growth and creating domestic jobs. As such, qualified EB-5 applicants must be able to invest $1,000,000 in a new capital enterprise, or $500,000 in a Targeted Employment Area (TEA).  Investors must be able to present a strong business plan that reasonably accounts for the creation of 10 full-time jobs for U.S. workers. The benefits of such a program can be profitable for both the financial state of the investor, as well as the residential status of the investor and their derivative family members (spouses and unmarried children under 21 years of age). Although these benefits exist, the EB-5 is a high risk investment opportunity that should be approached with caution. Investment Options USCIS requires that investors must invest in new commercial enterprises, specifically ones established after November 29, 1990. These can comprise any for-profit activity created for the purpose of conducting lawful business, and include sole proprietorships, corporations, holding companies, joint ventures, partnerships, and business trusts (both publicly and privately owned). In certain cases investors may invest in commercial enterprises established before November 29, 1990, but only under the special circumstances of either (1) a serious restructuring or reorganizing that results in a new commercial enterprise, or (2) when an expansion through investment has increased the operation’s net worth or number of employees by 40 percent. Another option is to invest in a “troubled business,” or a business that has been in existence for at least two years, but in the 12-24 months prior to the investment, it has sustained a loss of at least 20 percent of its net worth. In these latter cases, investors must often prove that they preserved 10 jobs during their two year conditional period. While 10,000 EB-5 visa numbers are made available annually, 3,000 are allocated for investment in TEAs, and 3,000 are allocated for investors affiliated with Regional Investment Centers certified by the USCIS. A TEA must either be an area with 150 percent of the national average rate of unemployment, or be considered a rural area outside of metropolitan limits with a population of less than 20,000. Regional Center Programs are geographic pools of foreign investment, used to direct funds into job-creating businesses that facilitate economic growth. In the case of investment through a regional center, each investor must be able to prove he or she has created 10 full time jobs, either directly or indirectly, within the two year conditional time frame.  Regional Center projects generally place the funds at risk into the job creating enterprise in the form of either a loan or equity. How to Apply & Prove Your Investment Applying for an EB-5 visa can be incredibly tricky, particularly when it comes to documenting the source of investment capital. It is crucial that the applicant is meticulous in his or her documentation, and provide detailed descriptions in every aspect of the application. The first step is to file the I-526 petition, which is used for both individual applicants, and those interested in Regional Center projects. There are several major requirements that must be proven through the I-526 petition, as follows: New Commercial Enterprise:
  • A new commercial enterprise is defined as a commercial enterprise established after November 29, 1990. The investor must provide evidence that the applicant has invested in a “new” business enterprise operating under the jurisdiction of the United States, or has invested in an enterprise established before November 29, 1990, with two specific criteria. The previously established enterprise must be restructured in such a way that the result is a new commercial enterprise, or able to prove the investment has facilitated a 40 percent increase in either net worth or employment.
Target Employment Area:
  • Proof that the enterprise exists in a TEA, if the investor has invested $500,000.
Funds Are At Risk:
  • Escrow agreements, statements, documentation of fund transfers, loan agreements, or any other documentation that proves the applicant is has invested, or is in the process of investing the amount required for the location of the business.
Lawful Source of Funds:
  • Extremely detailed evidence that the capital was obtained through lawful means.
Job Creation:
  • Valid evidence that the enterprise will create either 10 direct or indirect full time jobs in which employees work a minimum of 35 hours a week, for those legally authorized to be employed in the U.S.
Active Management
  • Clear documentation that the investor is active and involved in the management and decision making process for the business (less applicable for Regional Center investment).
In order for an I-526 to be approved and for the applicant to be cleared for lawful conditional residence in the United States, it is imperative that the I-526 clearly proves each of these six requirements in great detail. Once the USCIS has approved the I-526, the investor will be granted conditional permanent residence. This also applies to the investor’s derivative family members. Becoming a Legal Permanent Resident The EB-5 is first and foremost a conditional two year visa, at the end of the two-year period, the applicant must file to remove the conditions and becoming a fully lawful permanent resident of the United States. 90 days before the two year anniversary of the approval of conditional permanent resident status, the investor must file the I-829 petition. The I-829 petition must satisfy four main requirements, as follows:
  • Evidence of the investor’s establishment and ongoing functionality of a commercial enterprise.
  • Financial statements or documentation to support that the applicant actively participated in the investment of the requisite capital.
  • Proof that the investor maintained and sustained the investment throughout the entire conditional period. This could mean bank statements, tax returns, invoices, receipts, contracts, or other kinds of documentation.
  • Concrete evidence that the investor created 10 full time U.S. jobs, or is anticipating the creation of the required jobs within a reasonable time frame.
Upon approval of the I-829 petition, the investor, as well as his or her derivative family members, will become fully lawful permanent residents. In recent years, the slow economy has prompted the USCIS to become more accommodating in its consideration of EB-5 applications.This accommodation, in addition to the positive economic growth seen in the last few years,has rendered the program more attractive. Since the creation of the program in 1990, no numerical caps for EB-5 visa numbers had ever been reached until very recently. On August 23, 2014, the Department of State Immigrant Visa Control and Reporting Division announced that the EB-5 preference category for Chinese applicants had become unavailable until the start of the 2014-2015 fiscal year, which began on October 1, 2014. The increased success of this program leads investors to hope that Congress will soon raise the cap on EB-5 applications, allowing more investors to contribute to economic growth in the U.S. through this special visa program. In 2012 alone, the EB-5 investment program contributed over $3 billion dollars to U.S. GDP, and supported over 40,000 jobs. If you are considering immigrating to the United States through an EB5 contact one of our experienced immigration lawyers.

DAPA and I-601a

DAPA and I-601a Waiver Juan Basadre On November 20, 2014 President Obama announced new immigration reforms that would shift prosecutorial discretion to over 4 million individuals living in the United States currently. The president’s reforms would offer expanded Differed Action for Childhood Arrivals (DACA) and created a new category for parents of US citizen children, Differed Action for Parental Accountability (DAPA). The USCIS will not begin taking applications for DAPA until 180 days after the President’s announcement. DACA and DAPA offers applicants differed action and legal work authorization. Differed action provides applicants temporary relief from removal but does not does not confer legal status. Differed Action for Parental Accountability is available to undocumented individuals living in the United States on the date of the announcement and who are the parent of a US citizen or lawful permanent resident. Applicants must also meet the following guidelines: had continuous residence in the United States since January 1, 2010, are the parents of a U.S. citizen or lawful permanent resident, born on or before November 20, 2014, and are not enforcement priorities for removal.1 If an individual has entered the country without inspection, and wants to gain legal status as a beneficiary of their spouse, parent or child, they must file an I-601a (Application for Provisional Unlawful Presence Waiver) to avoid the statutory bar they would have incurred due to their unlawful presence.2 The waiver would allow the applicant to stay in the United States during the administrative processing, which is usually a 6 month period. The only amount of time the applicant would have to spend outside the country would be for the interview at the consulate, a significantly shorter period. However, the applicant must be able to demonstrate that their spouse or child would suffer “extreme hardship,” as a result of their prolonged separation. “Extreme hardship” is vaguely defined, but the applicant must demonstrate that their relocation would cause it to their qualifying relative. Many factors are considered in determining cases of extreme hardship including, health/medical considerations, education, personal considerations and the applicant’s country of origin. As for many waivers, receiving an I-601a is not guaranteed. However, simultaneously applying for DAPA can mitigate these risks. In the case the application is not approved, the applicant can stay in the United States without risk of deportation, providing they are not an enforcement priority. DAPA also provides work benefits during the 6 month period of administrative processing, offsetting some of difficulties associated without living without status.  It behooves the applicant to apply for DAPA benefits while also filing for I-130.

Consular Processing & Administrative Processing Word

Overview Consular processing is the procedure by which an applicant for immigration benefits applies for his or her visa (either temporary or permanent) at a U.S. consulate while outside of the United States. Some applicants legally residing in the United States on temporary visas will utilize consular processing as a means to obtain a travel document when they visit home. The potential immigrant will seek to travel to a U.S. consulate for an immigrant visa because they are otherwise ineligible to adjust their status to that of lawful permanent resident (green card holder) while here in the U.S. Many times, however, applicants are living outside of the U.S. and applying for an immigrant visa to enter the U.S. in legal permanent resident status. These petitions can be family based, employment based, or sometimes unique situations such as Amerasian immigrants, or various other specialty cases. The majority of these applications come about through petitions filed by employers or family members. When an applicant has an available visa number, he or she is required to schedule and attend an interview at a U.S. consulate. The majority of U.S. immigrant visas are ultimately decided at these interviews, but in certain cases, additional “administrative processing” is required. What is Administrative Processing? Administrative processing is the term consular officers use to reference pending visa applications that have been submitted to the U.S. Department of State (DOS), but cannot be issued because further action is required on the file by a DOS employee. Timelines for administrative processing are nearly impossible to predict, and can prevent cases from moving forward for any number of months or years. Administrative processing affects applicants and their families who are kept apart, as well as those whose finances cannot bear the strain of time and distance. Even in the presence of family emergencies, administrative processing forcefully separates families, who are at the mercy of the DOS as to when and whether the visa will ultimately be granted. In cases affected by administrative processing, the applicant in question will be given a 221(g) notice that his or her case will be put on hold until further clearance for visa eligibility is attained. There are several specific characteristics of a case that can trigger administrative processing that include, but are not limited to:
  • Criminal history
  • Citizenship of a nation considered a state sponsor of terrorism
  • Issues arising from a consular interview that lead the consular officer to request further consultation or review
  • Petition approval is not yet available in the Petitioner Information Management Service (PIMS), therefore the information cannot be verified by a consular officer
  • The applicant’s biometric or biographic information triggers a “security hit” in the Department of State Consular Lookout and Support System (CLASS) name check system
  • Current employment or employment history is listed in the Technology Alert List (TAL) that designates major fields of goods and technologies that raise technological transfer concerns
What Happens During Administrative Processing Once an applicant has received a 221(g) notice of administrative processing, his or her case is put on hold until the issue in question is resolved. These situations are frustrating, as neither the consulates not authorized to release the reason behind why a case is undergoing administrative processing. There are often two main groups of people affected by administrative processing: (1) applicants whose background checks are incomplete, or who have potential criminal histories or who raise security alarms (this can be as simple as having a name similar to another person in CLASS, and requires additional investigation to confirm that the applicant and the name person in CLASS are not the same person); and (2) applicants who the DOS determines need additional consideration before being found admissible to the U.S. or eligible for the benefit sought. When an applicant presents criminal history or a potential security threat, there are not many options other than simply waiting for the DOS to make a decision. If the applicant believes he or she may be stuck in a kind of name check, the applicant’s family member or employer might try to ask for Congressional assistance from the office of his or her local Congressman. If the applicant has a criminal history or potential for doubt in this area,he or she might also try to send in documentation of police clearances from law enforcement groups, from all places the applicant has ever lived. In limited cases, this can potentially speed up the amount of time spent waiting on a background check. The last and most frustrating option is to simply wait out the processing. Often there is little that can be done, and waiting is the only option.  This can lead to frustration for both client and attorney. If an attorney believes a visa petition will be denied because of either eligibility or admissibility issues, it is sometimes helpful is to contact the Department of State’s Visa Advisory Opinion’s Division(AOD), also known as LegalNet, and ask for an advisory opinion. Usually these are most appropriate immediately after visa denial, but can sometimes be done during administrative processing, too. If the issue is a purely legal one, and LegalNet decides in favor of the client, it will instruct the consular officer to issue the visa, thus terminating the administrative processing. Again, this is not always an effective solution, but once in a while is helpful. Notice of Intent to Revoke Once a petition is returned to the U.S., it can take up to 2-3 months for the National Visa Center (NVC) to receive it. Once received, the NVC sends the applicant a notice of receipt. The NVC sends the petition back to the USCIS service center in which the petition was originally filed and approved. This portion of the process can take around one month. The service center is then responsible for reviewing the petition as well as the consular officer’s notes on the case. Unfortunately, petition review is often low priority for USCIS officers and can extend the process a lengthy amount of time. Eventually, the USCIS service center will issue a Notice of Intent to Revoke (NOIR), relevant to the the consular officer’s specific objections. Once the NOIR has been issued, the applicant will usually be granted 30-90 days to respond with additional evidence. Once this response has been received, the service center will hopefully reaffirm the original approval, although it might also officially deny the petition. In cases of reaffirmation, the service center will send the case back to the consulate with a recommendation to issue the visa. The consulate will then contact the applicant with a new interview date, and begin the process again. Points to Consider When a visa application is placed in administrative processing, it is important to understand that there is still a good chance that the visa will be approved. In most cases, the applicant’s name or biometric information has triggered a hit in the security list, and will likely be cleared up by the process. In cases involving criminal history, administrative processing can sometimes be avoided if the attorney provides specific memoranda to the USCI with information regarding criminal activities. Unfortunately, the majority of cases involving administrative processing are uncertain as to why administrative processing occurred. This is a frustrating and time-consuming process, that often leaves clients confused and discouraged. However, it is good of remain hopeful, as it should be noted that the majority of these cases are eventually approved. If you have a Consular Processing, Adjustment of Status, or case placed in administrative proceedings contact one of our experienced Immigration lawyers.

China, Abortion and Adverse Credibility Determination

Burden of Proof and Determining Credibility  Aliens, applying for asylum and referred to an Immigration Court, will be required to testify about the details of their case in front of an Immigration Judge. In all Asylum claims, the applicant has the burden of proof, that is, they carry “the duty … to prove a certain issue by the assigned standard of proof.”1 The burden of proof then, is to demonstrate that the applicant has well founded fears of persecution due to immutable factors that fall into the five categories of Race, Religion, Nationality, Political Opinion and/or membership in a particular social group. Claims for Asylum need not be proved through evidence, as individuals fleeing from persecution are not likely to have been able to gather documents or other means of substantiating their claim. For example, one can easily imagine the difficulty in acquiring evidence of political persecution from the state that they are fleeing from. Therefore, “the case will often stand or fall on the testimony of the respondent, it is absolutely essential that detailed credibility findings be made in every asylum case.”2 Due to the lack of specific physical evidence, Immigration Judge s must carry discretionary power to determine the credibility of the applicant’s claims. As such, judges examine the witness’ testimony for any inconsistencies and omissions that may exist between the testimony and the application. Furthermore, judges also examine the demeanor of the applicant through “a person’s general physical appearance, composure or lack of composure, maintenance of eye contact, and manner of speech, including intonation, speed and fluency”3 to determine the truthfulness of the applicants claims. Despite the importance of determining credibility in asylum cases, few other guidelines exists that regulate the criteria by which the claim is to be evaluated or to what extent the Immigration Judge  must be persuaded by the claims.4 Moreover, judging demeanor and consistencies in an applicant’s testimony can be problematic for a variety of reasons. First, eye contact, manner of speech and intonation can be misleading in evaluating truthfulness. Differences in culture norms can lead to testimonials that, while seemingly dishonest to Americans, may be instead, indicative an applicant’s way of speaking. The courtroom setting may also account for these testimonies. The adversarial nature of courtroom settings along with the authoritative position held by the presiding judge may be quite outside what is culturally acceptable elsewhere. In some places, individuals may have adopted different methods for dealing with government officials, and may offer less or more information during their testimony due to this conditioning. Lastly, during the application process and during the trial, applicants may withhold or change their testimony not because they intend to commit fraud, but rather, as a result of a traumatic event that is spurring their application. Reliving traumatic details during the trial may result in exceptional mental anguish and can account for inconsistencies or lack of details. Thus the unique context of asylum cases may “adversely affect the adjudicator’s ability to interpret accurately behavioral signals or to evaluate evidentiary discrepancies.”5   Asylum for Chinese applicants fleeing China’s One Child Policy  Following the unprecedented population explosion of the 1950s and 1960s, the Chinese government instituted new methods to deals with overpopulation. Starting in 1979 the Chinese government implemented their one child policy that reduced the number of children couples could have, to just one. Couples who wished to have children must first have been married and then apply for permission from the federal government. Age restrictions were also introduced that required that men to be 22 years or older and women to be older than 20 before they could apply for a marriage license. Other regulations followed, placing stringent economic benefits and punishments for those who adhered or disregarded these stipulations. When coercion did not sufficiently dissuade couples from having more than one child, forced abortions and sterilizations took place and make up many of these Asylum cases. Following attempts by President George H. W. Bush to address the issue “in 1996 Congress took definitive action to protect Chinese nationals by passing section 601 of the Illegal Immigration Reform and Immigrant Responsibility Act”6 which would “provide definitive protection for refugees persecuted by coercive family planning policies.”7 The BIA interpretation of the Illegal Immigration Reform and Immigrant Responsibility Act (henceforth written as IIRIRA) expanded the rights given to Chinese women fleeing the one child policy to their legal husbands and children.8 However, these claims to Asylum do not formally extend to common law spouses or boyfriends and has been a source of great controversy in the last decade. In some cases couples, even those who have wed could not receive permission from the Chinese government to have children, often times due to the couple’s age. In these cases, denying Asylum has been argued to be misguided and to miss the point of the IIRIRA. Furthermore, the court has not been definitive on the issue, resulting in an unclear future for Chinese applicants.   Ge v. Ashcroft Adverse credibility determinations are critical for Chinese applicants fleeing China’s one child policy, as recent legal strategies have attempted to demonstrate to the court the arbitrary nature of a legal marriage in China. The court has adopted the hard line of a strict legal definition of “husband” to ensure that a certain level of intimacy exists between the couple, to avoid fraud. A positive credibility determination is immensely important, due the highlighted discretionary power the Immigration Judge holds in determining Chinese applicants fleeing the one child policy. Ge v. Ashcroft demonstrates these aforementioned problems. Wenda Ge applied for asylum, asserting that his wife has undergone 3 involuntary abortions, despite being fitted with an intrauterine device.9 After the birth of their first child, Ge became pregnant in 1991. She was dragged from the shipping company where she and Ge worked, to a hospital by local authorities, to have an abortion. In 1996, Ge’s wife became pregnant for the second time and was again forced to have an abortion. This time however, the authorities found that the pregnancy was not an accident and asked Ge and his wife to resign from their respective positions at the shipping company. The third pregnancy came occurred in 1999. Ge’s wife, fearful, hid in a village.”10 Authorities found Ge at the restaurant he had opened since being fired from his job in 1996 and took Ge into custody.  Ge was beaten by officers at the detention center he had been taken to. After three days, he escaped through a bathroom window. From there, he hid for 2 months in a friend’s home, until family members could gather enough money to pay for a United States visa. His wife, still in China, was forced to have her final abortion, despite being 7 months pregnant. After having her third and final abortion, officials coerced her into signing a document stating she would return in 2 months for sterilization. Instead, Ge’s wife hid in a suburb of Sichuan.11 Ge argued that he feared forced sterilization, should he return to China. Ge’s application was denied by the Immigration Judge, who delivered an adverse credibility determination. While the Immigration Judge pointed out aspects of Ge’s testimony as being incredible or implausible, the Immigration Judge did not point to any inconsistencies in Ge’s testimony or refer to any adverse signs of demeanor.12 Ge appealed, and the case was taken to the ninth circuit of appeals, overturning the Immigration Judge’s ruling. The court found that Immigration Judge’s findings were “based on the IJ’s [Immigration Judge’s] personal conjecture about what Chinese authorities would or would not do”13 and that “the record lacks evidence upon which an adverse credibility determination can be made.”14 While Ge conducted a successful appeal, cases like his demonstrate the power an adverse credibility determination can have on an asylum application. The appeals court found that Ge had provided consistent and credible testimony, which ought not to garner an adverse credibility determination. Yet, Ge was originally denied Asylum due to loose constraints and a lack of guidelines regulating how Immigration Judge’s deliver credibility determinations. Conclusions The discretionary power in determining credibility for Asylum cases has proven to be problematic, due to the process’ inherent subjectivity. While fraud is a concern, it seems that more inclusive measures ought to be taken to ensure that those deserving of Asylum or refugee status are not denied. Immigration Judges and Asylee applicants are placed into difficult positions. Both, in many cases, are unware or ignorant to the culture and norms of the other, and as such, can spark great difficulty in credible determination proceedings. These issues must be given greater consideration in the future to create a more efficient system. For Chinese applicants fleeing China’s one child policy, credibility determinations are critical. In a context of the One Child Policy, the line between forced and voluntary abortions is hazy, and nearly impossible to prove. Furthermore, the hardline on husbands as being the only beneficiary of these Asylum cases, misses the point of the measure. More particular guidelines are needed for Immigration Judges that can give both applicants and judges more clarity. In this way, judges can more effectively administer correct credibility determinations and applicants, in conjunction with their lawyers, can more effectively demonstrate their truthfulness.

An International Comparison of Investor Visas

Introduction   Investment Visas have become a popular option for governments to attract wealth from overseas, in order to expand their own economies. Each country has their goals in attracting wealth, such as adding liquidity to their market, increasing real estate prices or creating new jobs. In the United States the EB-5 program, introduced in the 1980s, has seen increased demand since its inception. So much so that quota totals are being exceeded for Chinese EB-5 applicants and may result in, for the first time in the program’s history, a visa retrogression. Other countries have introduced similar programs, with a wide variety of minimum investment requirements, qualifications, and residency benefits that address the needs of each individual country. This article will compare 11 countries: the Cayman Islands, St. Kitts and Nevis, Hong Kong, Singapore, England, Ireland, Portugal, the United States, Canada, New Zealand and Australia. Their investor programs vary widely in all aspects and in relative success.  These counties will be compared according to their minimum investment and job requirements, residency requirements and benefits, and processing times. Lastly, this article will offer improvements to the EB-5 program, as much can be learned by comparing the EB-5 program to other countries’. Minimum Investment: Passive and Active  The minimum investment in nearly all investor visas depends on the type of investment one intends to make. Basic qualifications also greatly vary. They typically require that the funds were collected legally, that the investor be experienced in business, that the investor demonstrate a sound business plan and many require that the investment be made prior to or at the time of application. Investments are also typically divided into either an active or passive investment types and the minimum investment often depends on the individual’s choice between these two options. What types of investments constitute an active or passive investment varies in each country. Generally, passive investments do not require that the investor maintain oversight or directional control of the entity of which he/she is investing in. The investor receives a return from the entity as a whole, collecting earnings from his/her investment. Examples of passive investments range, from stock to real estate. Conversely, an active investment indicates that they investor will maintain direct control into the operations of the business. This allows the individual, ultimately, greater control over the kinds of returns they will see from their investment. Active investments often manifest themselves as private business of which the investor also manages. To what extent an investor must exercise control over a business varies. The EB-5 program allows for investors to be on the corporate board of directors or to become a limited partner, demonstrating the variation of what can be considered an active investment role. Certain programs have only either active or passive options. Furthermore, investment minimums may vary within those options depending on the details of each government’s program. In the United States investors can choose from two options; a passive investment into a Regional Center (approved by the USCIS) or an active investment. Both options require a minimum $1,000,000 investment or $500,000 if the investment is in a Targeted Employment Area (TEA). The United States’ $1,000,000 active investment places it competitively amongst the countries analyzed in this article. New Zealand offers an Investor Plus visa which, for 10 million New Zealand ($7,900,200 USD), waives other requirements compared to their investor visa. Canada’s investor program requires 1.6 million ($1,433,267.98 USD) and Australia requires 1.5 million ($1,314,930.00 USD). Figure 1 demonstrates the highest minimum totals for 7 of the 11 countries discussed here, and whether that investment option is active, passive or both. Figure 1 Image These totals do not represent the minimum total for the 11 countries of this article. Rather these investment totals explicate the most expensive minimums and option from each country. For example, New Zealand offers two options for Investors; the Investor Plus program, with a minimum investment total set at 10,000,000 and a regular investor option, with a minimum investment set at  1.5 million New Zealand ($1,179,675.00 USD). Figure 2 lays out the cheapest minimum investment option from each country, and whether that investment is either passive or active. Figure 2  Image Active investment options, on the whole, are cheaper than their passive counterparts, and typically, countries offer an investor choice: a cheaper, active investment option and a more expensive, passive option. Active investment options, on the whole, are cheaper than their passive counterparts, and typically, countries offer an investor choice: a cheaper, active investment option and a more expensive, passive option. Job Creation Many Investor visas also require that the new business enterprise create jobs, legally employing citizens (or those authorized to work) of that country. The EB-5 program necessitates that the investor directly employs 10 individuals, or, in the case of the regional center, 10 active or indirect jobs. These minimums vary and only occur in cases of active investment. As previously expressed, many countries have no active investment option or offer both. Figure 3 outlines which countries have job creation stipulations, the minimum jobs needed and any related time limits for the implementation of those jobs. Figure 3 Image The United States requires the most stringent job creation stipulations amongst the countries analyzed. While Portugal also requires 10 jobs created, Portugal’s cheapest investment option allows the investor to purchase real estate, which as a solely passive investment, creates no jobs. Avoiding this stipulation of job creation is rather easy and a popular choice due to the lucrative nature of real estate investment. Other countries are more ambiguous about the number for job creation. Canada, for example, requires that the business must “create jobs for 5 years.” Residency Requirements, Duration, and Benefits  Residency requirements are those stipulations of how long the applicant must live in or visit the country throughout the visa. These minimum residency requirements widely range depending on each country. The EB-5 does not require that the investor stay in the United States for any particular amount of time but one can be considered to be abandoning their visa if they leave the country for a year or more, consecutively. Others stipulate a specific minimum number of days the applicant must be in the country. New Zealand’s Investor Plus require that the applicant spend 44 days in New Zealand in each of the last two years of the three-year investment period. The total duration of each visa depends on the type of legal status one attains upon approval. The EB-5 program gives the investor a conditional 2 year green card with the opportunity, at the end of those two years, to apply for permanent lawful residency status. Most countries follow a similar model of between 1-6 years of temporary residence that can lead to permanent lawful residence and, subsequently, citizenship. Other models exist; in the Cayman Islands, the investor visa is valid for 25 years and can be renewed. In St Kitts and Nevis, one’s investment grants them instant citizenship. Figure 4 gives a succinct overview of some countries’ minimum residency requirements and the duration of their legal status. Figure 4 Image The residency benefits for each country can be hard to measure due to the specific wants or needs of the investor. For example, an investment in St. Kitts leads directly to citizenship and, with a St. Kitts passport, access to the EU as part of the Schengen area. However, investment options in St. Kitts, due to the small size of the islands, may not be appealing to certain investors. While the United States has relatively stringent minimum investment and residency requirements, the EB-5 has maintained its popularity throughout its history. Furthermore, foreign investors are often looking for safe investments, as they try to diversify their assets around the world, especially in cases where the political situation of their country of origin has been called into question. Thus benefits of each country are relative; Investors may be drawn to the direct benefits of each visa type or may have a personal preference for a specific country based on what the country itself offers, in terms of culture, security, education, economic market, and life style. Processing Times  Processing times shift and vary. In the United States, processing times are adjusted monthly, ranging in time depending on where one applies and the country of origin. How quickly one can have their application processed is of immense importance to the investor and can play a large role in what country they may invest in. Not all countries can anticipate how long the process will take, as they cannot be sure of how many applications they will receive. Canada, for example, recently began its Start Up visa category. As such, they do not have estimates for the amount of time processing will take. Figure 5 gives a picture of some processing times. Many countries do not give any information about the amount of time it will take to process their applications. Figure 5  Image Conclusions  Each investment program addresses the need of its own country. Portugal has responded to its real estate crisis of the last decade by promoting an investor program that encourages foreign investment into real estate. Other countries are concerned with drawing outside capital or bolstering certain sectors of their economy through passive capital investments. In the United States, the EB-5 program intends to create more jobs and new businesses that will employ more Americans. Investment programs, when compared, can give a view into the economic needs of the country offering it Improving the EB-5 program would not dramatically alter its emphasis on job creation, because in part, that is its intended purpose. Clearly the minimum investment totals for the EB-5 program are reasonable as they have not deterred foreign investment and the program has only grown since its inception. Thus, improving the program would require a stream lining of the application process and improving processing times, to more efficiently address the growing number of foreign investors. Furthermore, increasing quota totals would respond to the changing global economy and number of investors currently waiting to invest in the United States. The United States appeals to foreign investors for a multitude of reasons, a primary one being security. While Hong Kong has had a reported 23,176 applicants for their investment program (as of June 2014), recent political developments in China have called into question the country’s stability, which will likely hurt their program. US democracy and common law system has contributed to its perception as a good place to invest. With this inherent advantage, the EB-5 program is most greatly improved by placing greater emphasis on bureaucratic efficiency and increased quota totals, rather than a major overhaul of the entire system.

Immigration Options for High-Achieving Aliens with Advanced Degrees: EB1-A

The United States provides special visa categories to attract immigrants with special abilities or skills, such as extraordinary knowledge or capabilities in the sciences, arts, education, business, or athletics. In addition there are also options available for outstanding researchers or professors, artists, and entertainers. The following is a discussion of EB-1A green card, one of the several of these visa categories.

 EB-1A Green Card for Alien of Extraordinary Ability

The EB-1A petition is an I-140 petition that can be used to later apply for a green card.  Extraordinary Ability (EB-1A) is a provision for immigrants of extraordinary ability in the sciences, arts, education, business or athletics. You may apply without employer sponsorship (“self-petition”), but you must be able to show that your work will be of substantial prospective benefit to the national interest of the United States. As a result of the 2010 precedent case, Kazarian v USCIS, there is a two-part test before approving an EB-1A petition. The first part is an examination of evidence to prove that the alien had achieved 3 of the 10 criteria listed below, and the second is a final determination of merits in which the evidence is analyzed overall to show that the alien is internationally recognized and has extraordinary ability.

 EB-1A: Examination of Evidence

Qualified applicants are those who have achieved high levels of prestige in his or her respective field, and those who are able to show sustained national or international acclaim through extensive documentation. Applicants should be the recipient of an internationally recognized award such as a Nobel Prize, or alternatively, must show themselves to be of extraordinary ability by meeting three (3) of the following ten (10) criteria:
  • Receipt of lesser nationally or internationally recognized prizes or awards
  • Membership in associations that require outstanding achievement of their members
  • Published material in professional or major trade publications
  • Participation on a panel, or as a judge, evaluating the work of others in the same or similar field
  • Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field
  • Authorship of scholarly articles in the field
  • Display or artistic exhibition of alien’s work
  • Evidence of performance in a leading role within and organization or establishment with a distinguished reputation
  • High salary or compensation for services in comparison to others
  • Commercial success in the performing arts such as box office receipt figures, or other comparable sales figures

 Merits Determination

 The second level of examination in an EB-1A case involves analysis by the USCIS offer to subjectively determine whether the alien is internationally recognized as having extraordinary ability.  This usually involves the alien demonstrating influence on the field as a whole. This second level of analysis is usually trickier because it is subjective, and the argument should be carefully crafted to emphasize the alien’s influence on his or her field of endeavor. Once approved, the you can use your EB-1A petition to separately apply for a green card.  With your green card, you will be expected to continue work in your respective field. EB-1A does not require a Labor Certification or employer sponsorship, but because it is conditioned on prospective benefit to the U.S., even after issuance of the green card, the alien should prove good faith by working in his or her field, as promised in the EB-1A petition.