Constant Contact: Spring Edition: March 2017
Welcome to our Spring Edition! This time of year always gives us all hope and a fresh start for the upcoming happy summer period. As always, there is never an ‘on/off’ period in US immigration~ it is always ON but do remember to take some valuable refresh time off!
There have been numerous developments since the swearing in of the new President and our last newsletter. Below are just some of the updates:
Presidential Executive Orders:
While the President has attempted to invoke his authority to bar nationals from certain countries, Federal Courts have challenged his mandates on the basis of discrimination. This has now happened twice and we will have to wait and see what will happen.
That said, we have always recommended that all persons who are green card holders ‘move up’ to US nationality by applying for citizenship for a litany of reasons, all of which we are happy to discuss prior to making such application. We have heard from just a few situations where border officers made some poor judgment decisions and caused unnecessary delays or stress on qualified travelers. A US passport will go a long way to resolving this issue.
Numerous Senators of Congress from rural districts are opposing the EB-5 platform as it now stands invoking that urban areas are usurping the intent of Congress and gerrymandering the Targeted Employment Area rules by including many major municipal areas. Coupled with several fraud cases which the SEC has and continues to investigate, there is a strong likelihood that the current legislation may be altered after its April 28, 2017 deadline.
As such, we predict that the new legislation will include TEA rules to favor more the rural areas and limit the urban areas to one census tract.
We also anticipate that the investment level will increase from $500,000 to $800,000, perhaps not in one directive but certainly over a short time period. The initial amount has remained the same since 1990. It competes well on the global market of migration, but there has been no cost of living adjustment. What is interesting is that the government had no problem in more than doubling the filing fees and slowing review process.
Breaking news: reliable sources have advised us that the progress to new legislation has been very slow and as such that a new Continuing Resolution maintaining the status quo is most likely. That said, new regional center audits are now being adopted by regulation from CIS which do not require Congressional approval.
It is statistically clear that the EB-5 program has been very successful and implemented in just about every part of the country. With billions of dollars invested and thousands of direct, indirect and induced jobs, this zero cost line item has the support of Congress from both sides of the aisle, one of the few where consensus can and should be reached.
EB-5 Investor Exit Strategy:
We are pleased to advise you that our firm has identified an EB-5 funding source to allow investors who have attained full residency but wish to exit the partnership which may have been the platform for the EB-5 application. Their investment is normally illiquid. This funding source replaces their position.
Normally, such investors are required to remain in the partnership until its conclusion (which may be several years after full approval) however our alternative will allow the funding source to replace the investor quickly with the consent of all parties.
Most EB-5 developers prefer to deal with one investor which may acquire multiple positions, and the investor will be able, at a discount, be able to ‘cash out’ their positions and use the proceeds for other uses such as funding other EB-5 positions for their family.
The new US residents may have a tax advantage to this financial adjustment therefore we recommend that you consult your tax advisor before making any decision.
E-2 Nonimmigrant visa:
Due to the very long delays in residency applications, many of our clients invest and seek a five year non Immigrant E-2 visa. This will allow them to remain in the US and benefit from their direct control investment. Some also control their company which takes minority positions in operating or new companies. There are no restrictions as to multiple applications at their expiration.
We are pleased to advise that we have not seen any changes in policy as to the E-2 from embassies and consulates around the world, including some of the countries which are most at risk. Indeed, we have just seen some upgrade of the computer systems which allow for direct information and updates with a view to streamlining the process.
Note as well that the Department of State has no objection to the investment being made through a franchise network. While this was a concern years ago, the DOS now realizes that the franchisor merely creates a platform of opportunity for the E-2 investor, but that the investor is in control of the destiny of the investment.
National Interest Waiver:
A major decision was made by the Court of Appeals recently allowing applicants to self-petition for residency wherein the applicant’s talent would have a ‘national importance’ to the United States. The matter involved a foreign doctor who was conducting advanced research. The research was still in development stages, but the application was approved on the basis that it had ‘national importance’ to the health of US residents.
Further, this petition is subject to premium processing and as such can be adjudicated in two weeks. The key, of course, is in the organization of the volumes of documents which need to be presented in a cogent and arguable way. Normal processing time for such a matter is 90 days. We also like to accompany it with a strong business plan to ensure the CIS of the serious nature of the petition.
While this application does not replace individual Extraordinary Ability or Labor certification cases, it does give applicants another huge opportunity to apply for residency without the limitation of the higher levels of evidence. Applicants are expected to continue in the area of work previously accomplished.
We are pleased to welcome back attorney Sonia Oliveri who has returned to our firm after an academic leave. Sonia brings with her a global perspective to each immigration matter and is fluent in Italian, Portuguese, Spanish, English, and Farsi. Her training at our firm after graduation from Nova Southeastern University as well as her legal training in Italy has provided her with a great start in her career and immense depth. Welcome back, Sonia!
Mr Behar will be attending the IIUSA conference in Washington DC on April 26-28 to assess the EB-5 developments. We expect all pending cases with EB-5 investors, however, to be filed before that date to ensure that Congress does not unnecessarily delay the matter. Note that this April 28, 2017 dates only affects matters which utilize the regional center platform; it does not affect individual filings.
Mr. Behar was a guest panelist at the NES Financial conference in February on EB-5. The firm is a Medallion Partner with NESF, one of the country’s leading oversight organizations of EB-5 funding.
It seems that every quarter that the unnecessary stress which Congress places on the community causes our team to have to step up its game one notch higher. I want to thank all my staff members for having done so with grace, professionalism and timeliness. While we cannot control the actions of the government and/or its agencies, the protocols which we have in our firm have gone a long way to so many successful results. Thank you Lea, Irene, Hailing, Jennifer and Sonia! US immigration is more than a career, it is a calling, helping thousands realize their US aspirations.
We will report back to clients in the early summer.
With best wishes,