2016 New York EB-5 & Investment Immigration Convention Ch China Issues Impacts of China na Quota Backlog Charles C. Foster / Foster Global Immigration Solutions David Hirson / David Hirson & Partners, LLP Cletus Weber / Peng & Weber, PLLC Rachel Zou / LianHong Overseas Consultants Limited Moderated By: H. Ronald Klasko, Esq. / Klasko Immigration Law Partners LLP Minor Investors • USCIS regulations do not put a minimum or maximum age on green card recipients • Strongly advised that investor should be a least 16 years of age • Not yet tested. Waiting for the first USCIS approval for a minor investor’s case • Obtain project’s advance agreement for an investment by minor
When a Minor (under 18) is the Main Applicant in the EB-5 Petition There are two major issues to keep in mind: 1. Contractual • Investor must have contractual capacity. • Involves federal immigration law, state contract law, federal and state securities laws, and the law of the place where the investor resides. • Usually requires signing by parents/guardians assisting the minor in entering into the contract. • Note: rescission rights of minor upon reaching age of 18 years. When a Minor (under 18) is the Main Applicant in the EB-5 Petition There are two major issues to keep in mind: 1. Contractual (cont’d) • See “Uniform Gifts [or Transfers] to Minors Act” for each State. • Presently some Regional Center projects are accepting minors, and others are not
When a Minor (under 18) is the Main Applicant in the EB-5 Petition There are two major issues to keep in mind: 2. SEC accredited investor • Minor must have minimum assets of $ 1 million. May be gifted • Accreditation of minor may fall under one of the exemptions • Should have a financial expert advise the minor of the risks Impact of Retrogression Investor Market • Mixed signals • Child as investor • More focus on rate of return? Child Status Protection Act • Better if I-526 pending longer
Impact of Retrogression Job Creation • Big problem for direct EB-5 • Basis for 2 ½ year rule no longer exists • Much longer time to create jobs • Jobs do not have to be sustained? Impact of Retrogression At Risk Requirement • Risk inherent in 10 year investment • Impact on Matter of Izummi? • Investment must be sustained at risk?
Impact of Retrogression Redeployment • Is it necessary? • Option to extend loan • What is “at risk” for redeployment? • Investor concerns Membership in Communist Party • Members of the Communist Party or affiliated organizations are ineligible. INA§212 (a)(3)(D) • Membership in the Communist Party of China is actually highly restricted. • Not inadmissible if membership is or was entered into involuntarily or someone under the age of 16 or by operation of law or for the purpose of obtaining employment, food rations or other essentials of living. INA§101(a)(2) and (e). • Also not inadmissible if the membership or affiliation terminated before application or admission in the case of China, 5 years if a member of a party controlling the government and not a threat to U.S. security.
Membership in Communist Party (cont’d) • If the applicant asserts credibly that the membership or affiliation was terminated more than 5 years previous, the Consular Officer should accept the assertion at face value. 9 FAM 302.5-6(B)(5)(U). • The parent, spouse, son, daughter, brother or sister of a USC or a spouse, son or daughter of an LPR may obtain a waiver for “humanitarian purposes,” to assure family unity or when it is otherwise in the public interest… INA §212(a)(3)(D)(iv). • Responsible positions with the Communist government generally constitute affiliation. 22 CFR 40.34(c). Higher Scrutiny of I-526 Info, Especially Comparing Info Previously Provided • U.S. agencies now share much information in real-time. • More in-country info is now available online.
Higher Scrutiny of I-526 Info, Especially Comparing Info Previously Provided • Potential effects: – USCIS denies I-526 because info differs from prior visa applications – Consulate rejects IV application and returns I-526 to USCIS to revoke. – Serious penalties for material misrepresentation Prior B-1/B-2 Nonimmigrant Visa Application and U.S. Entry for Birth Tourism • A political issue in the Republican primaries with references to “anchor babies.” • May be a fraudulent misrepresentation. • Another concern is whether or not the immigrant visa applicant obtained medical assistance at taxpayer subsidized expense. • Legitimate for a visitor to enter the United States for medical purposes, including having a baby as long as there is adequate disclosure.
Prior B-1/B-2 Nonimmigrant Visa Application and U.S. Entry for Birth Tourism (cont’d) • Disclosing the reason for the visit at the time of the interview, having a medical appointment in advance and having evidence that the applicant is paying the full rate for the medical services is highly recommended. Children of Visa Applicants Attending Public or Private Schools While in B-1/B-2 Status • Attending a public or private school in B-2 status is considered a per se violation of B- 2 status unless one’s attendance at school is incidental to the visit. • This has become a sensitive political issue due to real and perceived abuse and is one that is highly scrutinized by both U.S. Consular Officials and CBP and CIS. • The student is normally required to be in either F-1 Student or J-1 Exchange Visitor status.
Children of Visa Applicants Attending Public or Private Schools While in B-1/B-2 Status (cont’d) • May attend a public school in F-1 status only for one year but required to reimburse the school for education cost. INA§214(m)(l). • Subject to 5-year bar of inadmissibility if attend school in violation of status. • Parent may also be deemed to have made a material misrepresentation and be subject to exclusion. Exchange Control Rules • China – Rules are very restrictive – Individuals may remit U.S. $50,000 annually – Varying restrictions are introduced from time to time
USCIS’s In -Country Verification of SOF and Other Documentation • Increased scrutiny • In-Country Databases of Business Records • Calls to Companies to Verify Information • In-Person Site Visits • Other Tactics Possible Options for Entry During Waiting Period for EB-5 Numbers to be Available • B-1/B-2 Visitor or F-1 Student – Under INA§214(b), each applicant has the burden of proof to show that they are not intending immigrants to the United States. – May be possible to show “dual intent” i.e. that the applicant long-term seeks to immigrate, but has a short term need or desire to enter the U.S. as a visitor or student.
Options for Entry During Waiting Period for EB-5 Numbers to be Available • L-1 Intracompany Transferee (cont’d) – If the primary bread winner is employed in a viable business in China and has a bona fide option of establishing a U.S. affiliated company, the principal may qualify as a manager, executive or one possessing specialized knowledge. – Immediate family may also qualify for L-2 dependent status and for an Employment Authorization Document (EAD). Options for Entry During Waiting Period for EB-5 Numbers to be Available • H-1B Specialty Worker (cont’d) – May qualify with a bona fide job offer from a U.S. employer in a position requiring a 4-year university degree or the equivalent. – Chances of obtaining H-1B status are greatly diminished by the annual cap of 65,000 per annum plus an additional 20,000 Master’s Degree from a U.S. university. Chances of obtaining H-1B no greater than 25%.
Options for Entry During Waiting Period for EB-5 Numbers to be Available (cont’d) • O-1 Extraordinary Ability – For those who have achieved significant success and recognition in their particular field of endeavor. – No numerical limitation, but requirements must show significant evidence that they have risen to the very top of their profession. Options for Entry During Waiting Period for EB-5 Numbers to be Available (cont’d) • E-1/E-2 Treaty Trader/Treaty Investor – No E-1 Treaty Trader or E-2 Treaty Investor option given the fact that the U.S. does not have a Treaty of Friendship, Navigation and Commerce with the People’s Republic of China. (It does have such a treaty with the Republic of Taiwan.)
Disclaimer This presentation outline and the presentation itself are for general education purposes only and are not intended to provide specific guidance or legal advice about what to do or not to do in any particular case. You should not rely on this general information to make decisions about specific immigration matters. If you are not yourself a lawyer, you should seek the assistance of an immigration lawyer to help you resolve these issues. Thank you.
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