Articles Posted in Green Card

Mayor John Cranley cited several new initiatives he expects Cincinnati to take in making the South-west Ohio city the “most immigrant friendly city in the United States.” Cranley hopes to oversee an immigration Task Force, which Cranley started in 2014, to help create international attraction.

Among the initiatives the Task Force looks to bring forward are creating a center for new Cincinnatians that helps connect immigrants to services and other residents, launching a training program to help companies recruit international job candidates, providing immigrants with financial literacy training to help them navigate money management and home buying and marketing Cincinnati as an ideal location for manufacturing.

Another angle the Task Force looks to take is training police officers in cultural sensitivity, which could have something to do with the recent happenings in Cincinnati involving violence among the police force. Cincinnati is trying very hard to re-brand the local police force.

Given that the primary goals are creating jobs and spurring local growth, Cranley could be looking to primarily attract immigrants in the EB-5 program; where entrepreneurs and investors from overseas will come to the United States to invest in a commercial enterprise to help create jobs. The process is mutually beneficial to the Targeted Employment Area and immigrant alike, as the immigrant looks to attain Green Card Status through the program. There is also a Regional Center located in Cincinnati. Cranley may see that is the greatest opportunity fund several projects around the growing city.

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On October 1, the Fifth Employment-Based preference (EB-5) Regional Center program was extended to Dec. 11 in order to give Congress more time to draft a long-term resolution. The program helps provide a crucial boost of foreign capital through investments from foreign nationals looking to attain Green Card/Permanent resident status through the program.

The EB-5 program impacts local economy as well as the national economy. A base investment of $500,000 would create at least ten jobs, since that is the requirement for a foreign investor looking to acquire permanent resident status. These investments often occur in industries in Targeted Employment Areas (TEA’s), creating jobs and generating capital in areas that sorely need them. The direct effects of an EB-5 investment also include contributions to the Gross Domestic Product (GDP) and State, Local, and Federal taxes. Along with the inevitable job increases, the EB-5 program also helps stimulate the economy through household expenditures, as the investors themselves will contribute to the economy through every-day household needs (automobiles, moving, travel etc.). Given the state of the U.S. economy, the influx of money from foreign investors would improve the job market and overall cash-flow in foreign and domestic areas.
If, by Dec. 11, Congress decides to increase the visa limit to the desired 20,000/year, the program would be able to support over 100,000 jobs for Americans and generate billions of dollars to the U.S. GDP. Those numbers are almost 1/3 of that as the visa limit currently stands. In order to prove that their investment has generated and supported 10 full-time jobs, the investor must fill out a form I-829. Once approved, immigration restrictions are lifted. Given the desire for the EB-5 investor to become a full-time U.S. citizen, it is clear that jobs are almost always guaranteed to be created through the EB-5 regional center program.

During the 2013 fiscal year alone, spending associated with EB-5 Regional Center investors contributed $3.58 billion to U.S. GDP and supported over 41,000 U.S. jobs. Their spending contributed over $750,000 to federal and local government tax revenues. The EB-5 provides jobs for all sorts of industries, including hospitals, construction, legal services, wholesale trade, real-estate, restaurants and transportation. Although most of the investors gravitate to the larger states and cities, as do most people, investors target all TEA’s where investments are needed to help stimulate the economy.

In a time in our country where it has become increasingly difficult to secure and use traditional sources of financing for development projects, such as traditional construction loans, developer equity and tax credits, EB-5 investments have become an increasingly useable and important source of finances. Those on an EB-5 visa have a great incentive for their investment to be successful, as they came to the U.S. searching for the best way for them to obtain a permanent residency visa. In order to do that, they must create jobs. EB-5 investors handle all kinds of investor-driven projects on every scale.
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The current EB-5 Regional Center program was extended to Dec. 11 as Congress attempts to draft a long-term resolution in the coming two months. In the mean-time, those looking to invest in American industry should take advantage of this extension before changes are made to the EB-5 program as the minimum investment will more than likely increase to $800,000 or more.
Clearly, Congress recognized the importance of foreign investments that create jobs for hard-working Americans. Foreign capital is a key part to the American economy, and Congress will look to spend the next two months finding a proper solution that all parties involved can be happy with the would-be revised legislation. The extension of the program was greatly in doubt as the Oct. 1 deadline initially approached.
Transparency appears to be an important goal for Congress. In the American Job Creation and Investment Promotion Reform of 2015 Act, which was introduced in June by Senators Chuck Grassley and Patrick Leahy, the Regional Center Program would continue for five more years while adding transparency and security to the program.
Meanwhile, Senator Rand Paul is attempting to make the program permanent, as he introduced the ‘Invest In Our Communities Act’ on Oct. 1. Paul looks to raise cap of 10,000 total visas and make it so that regulators would no longer count dependents (spouses and children) as a part of the cap, making it all investors. This would effectively increase capital and jobs for skilled American workers around the country, if passed. Paul is clearly one of the programs greatest advocates.
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The American Dream is under fire after a government decision to backtrack on its promise to thousands of skilled immigrants, but justice may be coming in the form of a class-action lawsuit.
Following an initial publishing of the October Visa Bulletin (OVB) from the U.S. State Department (DOS) on September 9, 2015, it seemed that those who had previously been relegated to back-logged visa waitlists would have the opportunity to apply for permanent residency and green-card status. This policy optimization was rendered moot just days later after the DOS issued a revision that severely limited the number of immigrants eligible to apply for work visas under the new policies As a result, and as anticipated by most involved, a class-action lawsuit has been lodged against the DOS, U.S. Citizenship and Immigration Services (USCIS), Secretary of State John F. Kerry, and several other government defendants by those afflicted by the policy change.
The Lead Class Representative on the complaint is Chintan Mehta, an IT professional in Bothell, WA, spent thousands of dollars on attorney fees and medical examinations in preparation for his application only to be spurned by the revision. He and his co-plaintiffs represent thousands, of primarily of Indian and Chinese engineers, scientists, and many other skilled professionals that have had their lives and futures of their families put on hold due to a callous and unexplained renege by the US government. To-date, the DOS, USCIS, and the others involved have yet to come forward take responsibility for their actions.
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As the Sept. 30 deadline for Congress to renew the fifth employment-based preference (EB-5) investment program approaches, questions arise as to whether or not the act will expire or if a short-term extension will be established. Though nothing is set in stone to-date, it seems likely that if the immigrant visa program continues to exist beyond Sept. 30, changes will be made to the legislation.
One change that appears to be as likely as any is an increase in cost of investment for those who look to gain permanent residency through the program. Since 1990, an immigrant investor had to pay $500,000 to invest in a company in a Targeted Employment Area (TEA). Patrick Hogan, President at California Military Bases (CMB) Regional Centers, said the “most common amount” being discussed among congressmen is an increase to $800,000.
Along with a potential cost increase, Hogan believes the cap of 10,000 authorized investor visas will not be increased. Regulators not only count investors as a part of the cap, but also dependents of the investors, making the actual number of investors lower than the cap may suggest.
“There are a host of other proposed changes being bantered about,” Hogan said. “It is clear Congress will not amend language such that only EB-5 investors are counted towards the 10,000 visa cap.”
Although the EB-5 program only needs to the investor to create 10 jobs per investment, it has generated much more than that since the Immigration Act of 1990. In a 2013 article Washington Post Senior Correspondent Kevin Sullivan wrote that $6.8 billion were invested and over 50,000 jobs were created from 1992-2013 through the program. Sullivan also wrote that the EB-5 program is “booming in popularity,” but also that the program has its opponent:
“…others argue that the EB-5 program amounts to buying citizenship, and that it unfairly allows wealthy foreigners to cut the visa line ahead of others who have waited for years.”
Even with that opposing viewpoint, the loss of the EB-5 program will cost the United States thousands of potential jobs and billions of foreign investment dollars. Along with that, the jobs that are created through the EB-5 program come at no cost to American taxpayers, which is not the case for jobs created by projects through national and local government. Given the state of the U.S. economy, an influx of money from foreign investors could improve the job market and overall cash-flow in foreign and domestic areas.
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1215912_paper_chain_in_the_dark.jpgBefore the Child Status Protection Act was enacted in 2002, children who turned 21 while their permanent residence applications were pending were no longer considered children for immigration purposes and could no longer get a green card as an immediate relative. This circumstance is known as “aging out.” Foreign national children of U.S. citizen parents are eligible to obtain permanent residence (or green card) as an immediate relative. A child is defined by the Act as an unmarried person under age 21. Many people were aging out as a result of the huge backlogs and long processing times, and Congress enacted the CSPA in order to remedy this.

Thanks to the CSPA, once a U.S. citizen parent files a visa petition (Form I-130) on behalf of the child, the child’s age freezes for immigration purposes. Therefore, if the child becomes 21 while the petition is pending, the person is still considered to be a child and is still eligible for permanent residence. If a permanent resident parent becomes a naturalized U.S. citizen, the child’s age freezes on that date. For a child with a pending application for permanent residence based upon a preference classification, the CSPA allows the time the application was pending to be subtracted from the child’s biological age.
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Starting May 2015, EB-5 availability will be restricted for Chinese applicants. I-526 petitioners/applicants that receive approval from then on will have to indefinitely postpone their plans to enter the United States (unless, of course, they are able to get some other visa). In this sense, the introduction of a cutoff date is no different for EB-5 than it is for EB-2 or 3. However, further analysis indicates that the difference is significant. Priority date cutoffs result in a fundamental change in the EB-5 program.

On the I-526 petition (which begins the process) immigrant investors must submit a credible business plan along with evidence that the required investment is being made and will be at financial risk. In normal circumstances, once this petition is approved, the immigrant is given a two year period of conditional residence to (help or fully) manage the investment and fulfill economic requirements, which involve the saving or creation of at least ten jobs. After the two years have transpired, an I-829 petition must be used to prove that those requirements were met. The immigrant investor must essentially show that the plans set forth on the I-526 petition were carried out. Approval here translates to unconditional permanent residence. Crucially, it must also be shown that the immigrant never liquidated the investment.

Though EB-5 conditional residence visas are comparable to nonimmigrant investor visas, their distribution is subject to the same annual caps as unconditional green cards. This is where difficulty becomes apparent. In order for a Chinese national to receive I-526 approval for a direct filing (non-regional center), he or she must present a business plan with the strong potential to lead to the employment of at least ten U.S. workers over the next two years. Accompanied must be evidence that he or she will be able to maximize the plan’s chance of success. It would thus be apparent that non-regional center EB-5 among Chinese nationals necessitates something that cannot obtain: that their U.S. residence would start immediately following the approval of their I-526 petitions. This issue, while perhaps affecting less than half of Chinese EB-5 filers, appears fatal to their ultimate success.

The two most promising ways out of the dilemma are either if the immigrant can predict when conditional residence will start on the I-526 petition, or if he or she can somehow be allowed to manage the investment from abroad. The first seems possible only if the priority date cutoff is almost redundantly close to the present day, as priority date movements can be very sporadic. Though usually accurate, relevant predictions from the Visa Office don’t extend very far into the future. The second does not seem like a business plan that USCIS would approve, and the legalities of such a situation are not clear or well defined. Chinese direct EB-5 thus appears unavailable. If it somehow isn’t, there’s still the awkward question of how long to wait before submitting an I-829 petition. Should one wait two years plus the unknown amount of time it would take for the priority date cutoff to reach the present–or just two years? The difficulties inherent to potential answers leave this question open.

While direct EB-5 seems out of the question for new Chinese filers, their use of regional centers may still be feasible. There is no apparent reason why immigrant investors need to be in the country for this. However, there are other pitfalls to be considered. The amount of time an investor must keep his or her money at risk has become somewhat indefinite. I-526 approval requires showing that a capital investment has been made, and I-829 approval requires that the investment was sustained. The new waiting periods will occur between these two events, adding extra uncertainty and making the program much less attractive. Lending $500,000 to $1,000,000 to a regional center for an indeterminable amount of time plus two years isn’t an ideal investment prospect. Further, because their investors are investing in order to immigrate (rather than the other way around), the centers have been able to focus on things other than maximizing return.

In addition to this, Chinese immigrant investors also must consider whether their children over 16 (if they have any) will reach age 21 before the waiting period ends. If so, the children may lose their chance at gaining permanent residence along with their parents. While these challenges are not insurmountable, they make the program much less attractive. We will be publishing tips on coping with them soon. Nonetheless, we predict that many potential Chinese immigrant investors will decide against the program due to its apparent high uncertainty and limited potential for profit. But because of this, in a few years the waiting period may be removed. We hope that a more permanent solution will be devised by then.

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In this article we discuss the effect that USCIS regulations have on immigrant investors whose operations may need a course correction in order to fulfill the requirements of the EB-5 program–and how best to proceed in light of them. In another article, we detail the difficulty in the program that makes this an issue, and USCIS’s reaction to it. The agency has issued guidance that is at best insufficient and dangerous at worst. The potential issues and inadequate government response to them necessitates independent analysis.

An example may prove illustrative: a typical EB-5 investor is running a restaurant. Over a year into the conditional residence period, the business isn’t doing very well. A local university has opened a branch campus nearby, drawing in a few major restaurant chains. Students and original customers alike are flocking to these other restaurants. However, no new coffee-houses, where students spend a great deal of time and money, have appeared yet. In this case, converting the restaurant into a coffee-house would seem like the best bet. However, the I-526 business plan specifically envisioned a sit-down restaurant with tipped waiters.

Assuming the investor wishes to avoid the negative consequences of filing a new I-526 (detailed in the other article), the options are few. The most obvious one is to simply record the changes in the I-829 petition to remove residence conditions. However, this will intrigue a USCIS officer and invite serious scrutiny. Even if the evidence of job creation is rock-solid, this could lead to a denial. (Of course, failure to record such changes is even riskier.) The position apparently taken here by the government is “if there were changes, they had better have been worth it, though we reserve the right to deny.” This seems unfair–and in fact is not necessitated by law. It is due only to an interpretation of USCIS regulation, which is often much stricter than statute.

The “no changes” requirement is an interpretation the following: “the business plan in the I-526 petition must serve as the basis for determining at the I-829 stage whether the investment has been sustained throughout conditional residency and that at least ten jobs have been created (or will be within a reasonable period of time) as a result.” However, statute does not necessitate a job creation test at the I-829 stage. (This could be why the “within a reasonable period of time” standard exists.) While the job requirement itself does not appear subject to challenge, the reasoning above does.

Immigrant investors should therefore not have to fear denial on the grounds that they deviated from the approved business plan. But these denials do happen, and while some immigrant investors could be in a good position to challenge them, there is a better option than waiting for the condition removal stage. USCIS’s view of the case could be gauged in the form of an I-526 amendment. If the amendment is sent in the style as a progress report with good news of job creation, the government’s bias against business plan changes could be allayed. On the other hand, if the government reacts angrily, the investor would still have time to weigh his or her options. While the agency thinks business plan changes are grounds for I-829 denial, nothing in the regulations say anything about using those changes as grounds for revocation of conditional residence.

The preceding discussion applies (indirectly) to regional center investors. True, the ability to rely on “indirect jobs” (and the significant leeway attached to how and where they spring forth) prevents the job creation requirement from being a reason to deviate from the business plan. However, regional centers still sometimes fail to create enough jobs (or simply go under). In this sort of situation, an immigrant investor could use an I-526 petition amendment to explain what went wrong and show what plans he or she has to fulfill the requirements of the program. This seems sensible because of the “reasonable period of time” standard–and the fact that regional center failure is, at least on paper, someone else’s fault. Not allowing the immigrant investor the chance to pick things up after these difficulties is not only unfair, it also goes against the spirit and intent of the EB-5 program. A denial in these circumstances would be ripe for legal challenge.

The advice in this article should not be seen as applicable in all situations. If any of this applies to your case, it is imperative that you seek legal representation. The attorneys at The Law Firm of Shihab and Associates have never lost an EB-5 case.

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When a foreign national (FN) begins the immigration process, his or her case will be assigned what is called a priority date. This date is generally the calendar day Citizenship and Immigration Services received the original immigration petition–and represents the FN’s place in his or her line. In both case types, employment-based (EB) and family-sponsored (F), there are several legal avenues or methods an FN can use in an immigration petition. These legal avenues are formally known as “preference categories.”

For the purpose of this explanation, it will be productive to say that in each of these categories, there are five “pathways” to receiving permanent residence (or “a green card”). The pathway used is determined by the nationality of the FN, and there is one for each of the four oversubscribed nationalities of India, China, Mexico, and the Philippines. The last one is for all other nationalities. If a nationality is oversubscribed, it is bumping against the annual universal per-country limit.

The metaphor of five pathways in each preference category (of both case types) is useful because it allows the further metaphor of “lines.” Some pathways aren’t used very often, so they don’t have lines to get through them, but popular pathways do. Thus, how long an FN must wait in line to use a preference category (to get a green card) depends on his or her national pathway. Each preference category has its own annual limit as well, so if an FN’s petition falls into a category that isn’t at its limit–and he or she isn’t of an oversubscribed nationality–the only waiting time will be how long it takes the government to consider the case. There would be no line in the pathway.

But for most FNs, there is a line to use their national pathway to permanent residence. This is where priority dates come into play. For each national pathway that has a line, the Visa Bulletin lists a “priority date cutoff,” and only those that have priority dates before the cutoff date can petition for permanent residence. To continue the extended metaphor, the lines advance using a system similar to the one often employed in delis and the BMV/DMV. It is the one in which customers receive a number ticket and wait for it to be called out by a worker. If FN priority dates are the numbers on the tickets, the priority date cutoff would represent the number that one’s assigned number must be lower than to receive service.

A pathway’s cutoff is the priority date of the first immigrant that couldn’t be given a green card due to a numerical limit. In a perfectly stable world, the priority date for each line would likely advance by one month in each monthly Bulletin. However, the real world is far from this ideal. In fact, sometimes a priority date cutoff will retrogress further into the past. When this occurs, some FNs who were able to petition for permanent residence have temporarily lost this ability–and will have to wait even longer.

This happens because of the government’s goal with the Visa Bulletin. Instead of handing out green cards according to how long FNs have waited, the government’s legal objective is to fill every category without violating numerical limits. FNs from oversubscribed nations filing in popular categories are sometimes made to wait longer so that other FNs from the same country–that are applying in less frequented categories–can get through. Those in the more popular categories can be replaced with FNs from other countries. However, those in the less popular categories often can’t, getting them a fast green card at the expense of their countrymen.

This is also why some Filipinos and Mexicans have waited many years more than other groups in F cases but experience the same or less waiting time than them in EB cases, which is often none. It’s true that the government could make the (somewhat few) EB Mexicans and Filipinos wait (longer) so their F counterparts wouldn’t have to wait as long. But since all F categories are at their limits, FNs from other countries with family-sponsored cases would have to wait longer in the exchange. While not perfect, this would seem a little fairer.

However, it is the government’s opinion that doing this would not be in the U.S.’ best interests. The only possible use for the EB green cards saved (by making the EB Mexicans and Filipinos wait longer) would be for them to go to the non-oversubscribed national pathway of the EB category for somewhat less attractive workers. Theirs is the only EB category where this pathway has any waiting time. (It is the only one at its annual limit). But that pathway’s priority date cutoff has already made it to 2014, so its ability to make use of extra green cards is minimal. Making EB Mexicans and Filipinos wait more than a negligible amount of time would cause disuse of EB green cards and make F green card distribution no fairer.

But more importantly, moving things around like this could create unwanted vacancies in other EB categories or violate other regulations. In truth, there is little the government can do to change how it handles immigration without a change in the law. It is true that the Visa Bulletin can appear like a bureaucratic nightmare. But when one considers the complexity and rigidity of immigration law, it looks more like an elegant mathematical formula.

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Immigration to the United States is a complex and lengthy process (for most). Sometimes, when this topic is discussed, a “line” to receive a green card is spoken of. Though simplistic, this characterization is not incorrect. The fates of most immigration cases are tied to the Visa Bulletin, which represents the closest thing to the idea of the immigration line. The Bulletin is a monthly publication of the U.S. State Department (DOS), and shortly after it is released, we publish an analysis of it at www.shihabimmigrationfirm.com/visa-bulletin.html. It is the result of several government agencies’ efforts to reconcile immigration demand with relevant laws and regulations. The way the Bulletin works is confusing for many (to say the least), and its results have made life a little more difficult for most that seek to live in the United States. It is our hope that these two articles will clear up some questions about how the Visa Bulletin works–and why waiting times are as long as they are.

Law dictates that 366,000 foreign nationals may receive permanent residence, otherwise referred to as receiving a green card, each year. This cap does not apply to those claiming an “immediate relative” relationship to a U.S. citizen or other uncapped exemption. The limit is split into 226,000 for family-sponsored (F) cases and 140,000 for employment-based (EB) ones. These limits are divided further based on the legal avenue one wishes to use in obtaining permanent residence. These legal avenues are numbered and called “preference categories,” with “first preference,” etc. Each preference category has its own limit, and when a lower numbered category (which denotes higher “preference”) doesn’t use all of its assigned green cards, the remaining ones fall to the next category. (If the bottom category doesn’t use all its green cards, they are offered to the first category, and so on.) On top of this, no more than 7% of them can be given to immigrants from any one country.

The implications of the 7% limit are subtle, but when one considers that two countries (India and China) together contain over a third of the world’s population, its effect is clear. People from those countries aren’t going to have smooth sailing in U.S. immigration. There are four nationalities of immigrant consistently up against this limit (or are considered “oversubscribed”): China, India, Mexico, and the Philippines. Some immigrants from those countries have been waiting over 20 years for permanent residence, though one shouldn’t think that there’s a pre-ordained waiting period for these people. How long an immigrant waits pertains only, almost always, to how many other immigrants are attempting to obtain permanent residence from their home country–and how many are using the same preference category.

The DOS reports that there are around 115,000 EB petitions and over 4 million F petitions pending abroad. Added to this are many EB petitions pending for those in the U.S. on nonimmigrant visas. There are up to 800,000 people in the country on H-1B temporary worker visas, and likely at least half of them have domestic EB immigration cases as well. Trying to squeeze at least 4.5 million into 366,000 annually is going to take a long time, and new petitions are always coming in.

The somewhat unique system employed within the Visa Bulletin is effective at communicating what effect excessive demand for U.S. immigration has on waiting times. But importantly, it can’t speak so well to how much longer those in line will have to wait–and it has an even smaller ability to predict how long future cases will take. However, given current law, the sense behind it becomes clear with a little explanation. In Part II we will discuss the finer points on how the Visa Bulletin’s system is designed–and its effect on immigrants.