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April 22, 2015

Chinese EB-5 Retrogression: What Does it Mean?

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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.

March 12, 2015

Getting Through EB-5 Business Plan Changes

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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.

January 20, 2015

Understanding the Visa Bulletin, Part II: Detailed Explanation

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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.

January 18, 2015

Understanding the Visa Bulletin, Part I: Introduction to the System

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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.

December 18, 2013

What's to Come: The Good, the Bad and the Ugly Predictions for Immigrant Visa Processing Times for 2014

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In 2013, we saw some interesting changes in processing times, from rapid progressions in some visa categories to retrogression in others. Using the latest Visa Bulletin for January 2014 along with the predictions made by Charles Oppenheim of the Visa Office, our team has come up with some of our own predictions for processing times for the upcoming year. Here is a highlight of the Visa Bulletin predictions for 2014:

The Good

  • It is possible that the cut-off dates for India EB-2 visas will return to pre-retrogression dates (circa December 2008) in August or September of 2014.
  • It is likely that the processing times for EB-3 visas for Mexico, China and the rest of the world will continue to progress at a healthy rate in 2014. However, be wary as there may be a greater than expected demand in these areas, causing stagnation or even retrogression.

The Bad

  • The processing time for all India EB visas will remain stagnant through the beginning of 2014.
  • It is very likely that a cut-off date for China EB-5 visas will be introduced in 2014.
  • A cut-off date for EB-5 visas for the rest of the world may also be imposed in 2014.
  • The processing time for China EB-2 visas will continue to move very slowly.

The Ugly

  • The cut-off date for EB-3 visas worldwide may retrogress in 2014.
  • There may be retrogression of the cut-off date for the Mexico F-2A visa category in 2014.

While these forecasts are intended to help you plan for the upcoming year, please keep in mind that these are only predictions and are subject to change.

December 18, 2013

A Unique Opportunity for Chinese Nationals Seeking Employment-Based Immigrant Visas

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Since the June 2013 Visa Bulletin was released, the priority date cut-off for Chinese nationals filing under the EB-3 immigrant visa category has been more recent than the priority date cut-off for the EB-2 visa category. In fact, the cut-off date for EB-3 visas for Chinese nationals has progressed nearly four years since June 2013, from September 1, 2008 to April 1, 2012, thanks in large part to a dramatic 18 month jump between August and September of 2013. Contrastingly, cut-off dates for the EB-2 category have lingered around the second half of 2008, progressing only five months, to December 8, 2008, between June 2013 and January 2014. In October 2013, Charles Oppenheim of the Visa Office predicted that the cut-off dates for EB-3 visas for Chinese nationals will likely continue to progress more rapidly than the EB-2 visa category.

With this in mind, employers who have already petitioned for Chinese nationals under EB-2 or those who are planning to file for an employment-based immigrant visa in the near future should consider alternative options that could accelerate their path the permanent residence. For instance, employers who have petitioned for Chinese nationals and have a pending or approved EB-2 immigrant petition may subsequently file under the EB-3 category for the same beneficiary ("downgrade"). Employers who seek to file a new Form I-140, Immigrant Petition for an Alien Worker from China may also concurrently file under both EB-2 and EB-3 visa categories.

This is possible because the federal regulation at 8 CFR §204.5(e) indicates that when a beneficiary has more than one approved petition, either because of concurrent EB-2/EB-3 filing or because of subsequent "upgrading" from EB-3 to EB-2, the beneficiary's priority date is the earliest priority date assigned. Similarly, though less common, if a petitioner originally files under EB-2 and subsequently files under EB-3, the beneficiary will be assigned the earlier priority date.

"Downgrading" from EB-2 to EB-3

Thanks to a unique exception to the 180-day validity period rule, employers who have already petitioned for a Chinese beneficiary under the EB-2 immigrant visa category may file a second I-140 using the original labor certification to support an EB-3 petition. While it is uncommon to "downgrade" from EB-2 to EB-3, employers of Chinese beneficiaries with either a pending or approved EB-2 petition may wish to consider filing under the EB-3 category because they could move ahead in the visa queue.

Considering the recent progression rate for EB-3 cut-off dates and the likelihood that this trend will continue, there is a very good chance that those Chinese nationals who choose to "downgrade" from EB-2 to EB-3 will receive an earlier priority date. However, even if by the time the EB-3 petition is filed the EB-2 cut-off date surpasses the EB-3 cut-off date, there is nothing to lose, as the beneficiary will retain the earliest priority date.

EB-2/EB-3 Concurrent Filing

Employers who intend to file for an employment-based immigrant visa on behalf of a Chinese national should consider concurrently filing the Form I-140 under both the EB-2 and EB-3 visa category using the same labor certification. Pursuant to 8 CFR §204.5(e), the beneficiary will be assigned the earlier priority date.


This unique opportunity for Chinese nationals will not last forever. Thus, it is important to act fast. Keep in mind that there are several requirements and strategies to consider when concurrently filing under EB-2/EB-3 or subsequently filing a second employment-based petition.

August 6, 2013

USCIS Clarifies Same-Sex Marriage Immigration Rules

1392509_rainbow_flag.jpgEver since the Supreme Court ruled last month that section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, same-sex married couples have been eligible to apply for green cards based upon marriage to a US citizen or US permanent resident of the same-sex. The US Citizenship and Immigration Services (USCIS) has just issued an announcement clarifying the rules that it uses to adjudicate same-sex marriage based cases. The announcement seems to indicate that virtually every area of immigration law, the USCIS will treat same-sex marriages exactly the same as opposite-sex marriages.

Green cards are now available for same-sex spouses of US citizens and US permanent residents

Continue reading "USCIS Clarifies Same-Sex Marriage Immigration Rules" »

July 17, 2013

New T Visa and U Visa Changes Benefit Applicants

1147342_security_fence_3.jpgThe US Department of State issued last month a June 2013 cable explaining recent T and U visa changes that were enacted by Congress in March 2013. These changes grant several protections previously unavailable to petitioners.

What are the U and T visas?

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July 10, 2013

AAO Case Decision re Entrepreneurs: EB-1 Intracompany Transferee Visa

1409592_gavel_2.jpgIn order to grasp a true understanding of the criteria a foreign national entrepreneur must meet in order to qualify for an immigration visa, it is extremely helpful to study relevant court case law that illustrate the real-world application of the black letter law. The USCIS Administrative Appeals Office issued a recent and important ruling on June 13, 2013 in a case involving an EB-1 immigrant visa petition for alien worker as a multinational executive or manager.

This case is important because the AAO's decision here is favorable toward foreign national entrepreneurs who may seem ineligible based upon the black letter law, yet actually do meet the necessary criteria upon closer review.

Continue reading "AAO Case Decision re Entrepreneurs: EB-1 Intracompany Transferee Visa" »

July 8, 2013

Obama Administration Gives Green Light to Same-Sex Marriage Immigration Visa

829079_wedding-ring.jpgWill the Obama administration allow same-sex married spouses to get green cards based on marriage to a US citizen or resident? All signs point to yes. The US Supreme Court made headlines last Wednesday when it struck down the Defense of Marriage Act (DOMA) and granted same-sex married couples access to the same benefits that opposite-sex married couples enjoy. Given Obama's original campaign promise to uphold DOMA, there may have been some doubt as to how the Obama administration would actually administer the change. But same-sex couples can now breathe a sigh of relief thanks to the administration's currently announced public stance.

DOMA, which was enacted in 1996 and signed into law by President Bill Clinton, has since been the obstacle that has prevented same-sex married couples from getting federal benefits that are available to opposite-sex married couples. This includes immigration benefits as well because DOMA is the reason why same-sex foreign nationals have been banned from getting green cards based upon marriage to a US citizen or permanent resident.

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June 29, 2013

US Supreme Court Decision Makes Same-Sex Couples Eligible for Green Cards

1038827_u_s__supreme_court_1.jpgWhat is the Impact of this decision on Immigration?

For the first time in history, Gay and lesbian couples will be eligible to get green cards for their foreign national spouses as a result of a recent US Supreme Court ruling that will allow same-sex couples access to federal benefits. The Court declared in its opinion last Wednesday June 26, 2013, that section 3 of the Defense of Marriage Act (DOMA) is in violation of the Fifth Amendment and therefore unconstitutional. DOMA is a federal statute that forbids the US government from recognizing same-sex marriages for federal purposes, even when such marriages are recognized in same-sex couples' home states.

The term "marriage" is not defined in the Immigration and Nationality Act (INA). However, according to US Department of State Foreign Affairs Manual at 9 FAM 40.1 N1, the validity of a marriage for immigration purposes is defined by section 3 of DOMA, a statute that forbids the federal government from recognizing same-sex marriage.

Continue reading "US Supreme Court Decision Makes Same-Sex Couples Eligible for Green Cards" »

June 28, 2013

Your I-485 Interview with USCIS: What to Expect

334225_press_conference.jpgAfter you file the Application to Register Permanent Residence or Adjust Status Form I-485, some months later you will be scheduled to meet with a USCIS immigration officer for an interview. Some people are nervous about attending the interview for fear that the officer may decide to deny the application. Being nervous may be a result of uncertainty of what to expect. Therefore, this article explains the USCIS interview process in greater detail so that you can know what to expect and be prepared.

What is the purpose of the USCIS interview?

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January 2, 2013

Being a Public Charge Will Stop You from Getting Your Green Card

296223_empty_pocket_1.jpgYour I-485 application to adjust status to permanent residence can be denied if you are deemed to be a "public charge." Under immigration law, you are a public charge if you have received public cash assistance to maintain your income or you were institutionalized for long-term care at the government's expense.

Public benefits that will make you a public charge

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December 22, 2012

Upcoming Immigration Reform

889854_freedom_2.jpgImmigration reform was a hot topic in the past presidential election, albeit for a short period of time. Now that the election is over, many are looking ahead to the possible changes that could be taking place. There are several areas of possible reform where immigrants are eager to see changes. These areas include, people who entered without inspection, undocumented youth, highly educated immigrants and undocumented workers.

Obviously, the most important area of reform for those without status is legalization. It is estimated that there are about 11 million undocumented people currently in the United States. It will be interesting to see how difficult any path to citizenship will be, especially how long the undocumented person needs to be in the country before they can apply for the new hypothetical temporary status and for how long they must maintain that status before they can get their green card. The new roadmap to naturalization might be a long winding one, but many will probably be excited just to have a chance to become U.S. citizen, where before there was little legal recourse available to them and they were forced to live on the fringes of society.

Continue reading "Upcoming Immigration Reform" »

December 11, 2012

EB5 Immigrant Investor Visa: Make an Investment, Get a Green Card

1037536_money_in_hand.jpgThe EB5 immigrant visa category is a way for foreign national investors to obtain lawful permanent residency in the US, otherwise known as the green card. This visa category is for immigrant investors who will be engaged in a commercial enterprise that produces 10 US jobs and will benefit the US economy.

In order for a foreign national to qualify, the person must make an investment of $1 million. The investment requirement lowers to $500,000 if it can be established that the investment will be for what is known as a targeted employment area, which means a rural area or an area having at least 150% of the national unemployment average.

Continue reading "EB5 Immigrant Investor Visa: Make an Investment, Get a Green Card" »