Header graphic for print

EB-5 Insights

Where Government Policies and Business Realities Converge

Posted in Green Cards, USCIS

U.S. Citizenship and Immigration Services (USCIS) announced on April 19, 2017 that the agency will begin issuing revamped Permanent Resident Cards (commonly referred to as “green cards”) and Employment Authorization Documents (EAD Cards) as a part of the Next Generation Secure Identification Document Project,  a multi-agency initiative aimed at modernizing security measures through advanced biometrics technologies.

The new designs, which use enhanced graphics and fraud-resistant security features, will be less susceptible to tampering and counterfeiting than the current cards. This update is indicative of a larger trend throughout the immigration agencies to crack-down on fraud and to take a tougher stance on vetting and security issues across the board.

USCIS states that the redesigned cards will:

  • Display the individual’s photos on both sides;
  • Show a unique graphic image and color palette:
    • Green cards will have an image of the Statue of Liberty and a predominately green palette;
    • EAD cards will have an image of a bald eagle and a predominately red palette;
  • Have embedded holographic images;
  • No longer display the individual’s signature; and
  • Green cards will no longer have an optical stripe on the back.

Importantly, the agency will continue to issue cards in their existing format even after May 1, 2017, stating that it intends to deplete current supplies before transitioning to the new versions. All versions of green cards and EAD cards will remain valid until the expiration date listed on the document. Do note, however, that certain EAD card holders have had their validity automatically extended beyond the listed expiration date. If you are unsure as to whether you are affected, you should contact your immigration lawyer for guidance.

Foreign nationals currently in possession of older green cards not bearing an expiration date—which will remain valid—should nevertheless consider applying for an updated replacement card in order to reduce the likelihood of fraud or issues with document verification and interacting with the government.

Foreign nationals may continue to present any valid green card or EAD card for I-9 verification purposes. Therefore, employers and HR representatives should familiarize themselves with the appearance and features of the redesigned documents so as to be able to navigate the employment eligibility process when onboarding new hires.

For more information about green cards and the green card process, you can visit USCIS’ designated web portal and visit our prior blog posts on the subject.

Posted in Executive Order, H-1B Cap

On April 18, 2017, President Donald Trump signed an Executive Order (EO) titled “Buy American and Hire American.” The stated purpose of this EO is to protect the American economy by having the U.S. government and agencies focus on purchasing goods made in America, and to also protect American workers. The first part of the EO includes text that focuses on conducting studies and putting forth plans for federal agencies to immediately maximize the use and procurement of materials and products made in the United States—or “Buy American.”

The second part of the EO includes text that focuses on “Hire American,” that is, reviewing current U.S. immigration laws, specifically as they relate to nonimmigrant visa categories. A summary of the second part of the EO is below:

Ensuring the Integrity of the Immigration System in Order to “Hire American”:

  • The Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security are tasked with proposing new rules and issuing new guidance with the intent of protecting U.S. workers and eliminating fraud or abuse.
  • In addition, the text of the EO directs that reforms should be focused on ensuring that H-1B status is only granted to those who are the “most-skilled” or the “highest-paid.”

This EO comes only a few weeks after various U.S. federal agencies tasked with administering immigration law issued guidance and decisions with the intent of preventing fraud and abuse in the immigration system, specifically the H-1B program. The United States Citizenship and Immigration Service, the Department of Justice, and the Department of Labor all released statements and/or policy with regard to the H-1B program.  To see a summary regarding these statements and/or policies, please visit our previous post.

As this EO is general in nature and does not dictate any specific timelines for the “Hire American” portion, Greenberg Traurig will continue to monitor the conditions and changes. To receive updates, please subscribe to our blog.

Posted in Awards & Recognitions, Immigration

Greenberg Traurig’s Business Immigration & Compliance Practice and two of the group’s attorneys were included in the 2017 Chambers Global Guide. The 2017 guide includes 37 Greenberg Traurig attorneys and 23 practice areas.

According to its website, Chambers and Partners selects attorneys and practices for inclusion based on thousands of interviews with practicing lawyers and clients around the world. The Business Immigration & Compliance Practice received recognition by region in the United States. Immigration attorneys Laura Foote Reiff and Martha Schoonover were ranked in the Immigration category by region.

To read the full press release and view the full Greenberg Traurig 2017 Chambers Global Guide rankings, click here.

Posted in EB-5

As April 28, 2017, approaches we are seeing the release of edits to proposed draft bills from the last session of Congress. Just today, Senator Patrick Leahy (D-VT) and Senator Charles Grassley (R-IA) circulated a staff draft very similar to what was circulated in December 2016. We do expect to see other drafts being circulated from other members of Congress and we will be working with all EB-5 stakeholders on a potential EB-5 compromise. It appears that the April 28 expiration of the program will be extended for a few weeks in the short-term (maybe as long as four weeks) as Congress works on other issues that need to be addressed to keep our government open and funded. As you know, the comment period for the proposed EB-5 regulations has been closed as of April 11.  It is possible that EB-5 legislation will be passed before the regulations are implemented.  We will keep you apprised of the differing drafts on the EB5 legislation circulated as well as the process as events unfold.

Posted in EB-5, EB-5 Program, I-526, Immigrant Investor, USCIS, Visa

USCIS recently announced the release of a new edition of Form I-526, with the new edition dated 04/10/2017. Starting on June 9, 2017, USCIS will only accept the 04/10/2017 edition.  Until then, investors can use the 12/23/2016 edition. Both editions of Form I-526 are available to download at no cost on the USCIS website.

Investors should be mindful of several substantial changes to the new Form I-526 (04/10/2017 edition). At first glance, the length of the form has noticeably increased: up from 3 pages in the 12/23/16 edition to 13 pages in the new edition. The additional pages include new fields that request information on the investor, dependents, the Regional Center, NCE, and JCE(s). The 04/10/2017 edition includes the following new changes:

  • List of Employment for Last 5 Years: USCIS will now require the investor to certify his/her previous employment history for the last five years, including the employer’s name and address, and the investor’s job title and dates of employment. Therefore, the Form I-526 should accurately reflect the investor’s employment history, and the same should for all employment records, tax returns, and resumes submitted as part of the investor’s source of funds.
  • List of Physical Addresses for Last 5 Years: The investor will need to list all addresses in or out of the United States for the last 5 years.
  • Other Information About the Investor: The new form provides space for the investor to all other names ever used (including aliases, maiden name, and nicknames), place of birth (city/town and state/province), sex, and country of last foreign residence if the investor is a citizen of more than one country or his/her nationality differs from citizenship.
  • Is the Investor Currently in Immigration Proceedings? The investor will be required to certify whether he or she is currently in exclusion, deportation, or removal proceedings before the Department of Homeland Security (DHS) or the Department of Justice (DOJ).
  • Information on Dependent Family Members: This new addition to the Form I-526 requires the name, date of birth, and relationship of the dependent spouse and children applying with the investor. The form also asks the investor to specify whether the dependent will apply for adjustment of status of for a visa abroad.
  • Information about the Investment. A new addition to Form I-526 is that the investor will now need to check off and also describe the source(s) of the investment capital.
  • Information on the Regional Center:  The new form requires information on the Regional Center which prior versions of the form did not request. The new form includes fields for the Regional Center’s name, the Regional Center Identification Number, the receipt number for the approved Regional Center, and the New Commercial Enterprise (NCE) Identification Number.
  • Information on the NCE: The form requests that the investor list the name of any other person or entity that holds a percentage ownership in the NCE, their percentage of ownership, and whether that person has obtained classification or is seeking classification as an alien entrepreneur under INA section 305(b)(5) on the bases of his or her investment in the NCE.
  •  Information on the JCE: There is space to include information on all JCEs involved with the new commercial enterprise, if the JCE(s) differs from the NCE.
  • Interpreter’s Certification: If an interpreter was used by the investor to complete the form, then he or she will need to complete the Interpreter’s Certification section of the form.

Are these new additions to Form I-526 a sign of other changes to come for the EB-5 program?  With the comment period already concluded on the proposed EB-5 Regulations (the deadline to submit comments on the Notice of Proposed Rule Making ended on April 11, 2017 at 11:59pm eastern), it remains to be seen if any of the proposed amendments will be implemented by USCIS. The proposed rules seek to increase the minimum investment amount for high employment areas from $1 million to $1.8 million, and increase the minimum investment amount for targeted employment areas from $500,000 to $1.3 million. On top of this, the Regional Center program is set to expire again on April 28, 2017. It still remains to be seen what changes, if any, will be made by the agency or by Congress in the next few weeks. We will be sure to keep you updated on any developments.

Posted in Awards & Recognitions, EB-5, Immigrant Investor, Immigrant Visa

The Business Immigration & Compliance Practice of Greenberg Traurig, LLP is pleased to announce that Jennifer Hermansky has been elevated to shareholder in the Philadelphia office. Hermansky focuses her immigration practice on both employment-based and family-based immigration. Specifically, she focuses her practice on EB-5 immigrant investor visas. She has prepared and filed many immigrant investor visa petitions, both through individual investments and regional center investments. She is among 40 attorneys Firmwide who were elevated to shareholder in more than 10 key practice areas.

To read full press release, click here.

 

Posted in EB-5, EB-5 Immigrant Investor Program, Events

Kate Kalmykov recently presented at the 2017 Invest in America Summit in Shenzhen, China. Kalmykov’s panel discussion “EB-5 Immigrant Investor Program Under New Immigration Policies” provided an overview of the basics of EB-5 and what to expect in the coming year.

Greenberg Traurig’s Kate Kalmykov prepares for her presentation on EB-5

Greenberg Traurig’s Kate Kalmykov prepares for her presentation on EB-5

Kate Kalmykov and conference participants provide an update on the EB-5 immigrant investor program under new immigration policies

Kate Kalmykov and conference participants provide an update on the EB-5 immigrant investor program under new immigration policies

Greenberg Traurig’s Kate Kalmykov provides a basic EB-5 overview

Greenberg Traurig’s Kate Kalmykov provides a basic EB-5 overview

Conference participants of the 2017 Invest in America Summit

Conference participants of the 2017 Invest in America Summit

Kate Kalmykov and conference participants

Kate Kalmykov and conference participants

 

Posted in Eb-5 Regional Center, I-924, Regional Center, USCIS

USCIS announced on March 21, 2017 the launch of its EB-5 Regional Center Compliance Audit Program (Audit Program). The Regional Center Compliance Audit partially clarifies what USCIS has spoken about in public at stakeholder engagements, which is the eventual use by USCIS of site-visits to verify information submitted in EB-5 petitions.

There appears to be two aspects to the Audit Program. First, the employees of the Audit Program will review a regional center’s filings, which would likely include all Form I-924 and Form I-924A applications submitted by a regional center, and any ancillary documents submitted with those filings to verify the information provided using public and non-public databases. For instance, if a regional center is incorporated within the state of Delaware, USCIS will likely verify the regional center entity is still validly operating and active with the state. However, USCIS also could seek verification of information which relates to a job creating enterprise that the regional center is sponsoring, such as whether or not the job creating entity is still validly operating or whether or not the permits required for the job creating entity to operate are still valid. These types of routine audits of existing regional centers conducted by USCIS should be relatively easy to for USCIS to dispense with, as they simply require an individual at USCIS to verify information remotely.

The second aspect of the Audit Program is performing a site-visit by USCIS. According to USCIS’ webpage, this could entail any of the following:

  • Review of Form I-924 filings by the regional center;
  • Review of Form I-924A filings by the regional center;
  • Review of any updates to those filings; and
  • Information to verify submissions or statements in those filings.

It appears from the above that USCIS is requiring regional centers to have paper copies of all submissions to USCIS available on demand. That appears to be a fairly significant compliance requirement given that a regional center filing can be more than 1,000 pages. Additionally, it is unclear what USCIS would require from a site-visit when it requests updates to previously submitted regional center filings. As noted, those filings can be more than 1,000 pages and potentially include information and documentation regarding its sponsored job-creating entities. The vagueness of these requests, while likely intentional by USCIS, does little to assist regional center operators in preparing for a site-visit. It is likely that at the time of a site-visit a regional center will need to provide USCIS with additional information after the fact.

While some regional centers are affiliates of the job-creating entities they sponsor, many are not. If USCIS seeks to verify information regarding a job-creating entity, it is not clear how a site-visit to a regional center operator would accomplish this. While many regional centers receive regular updates regarding projects they sponsor, those updates may not be day-to-day, and may be limited to information the job creating entity is contractually obligated to provide. For instance, a job creating entity may only be required to provide information to a regional center as necessary to comply with USCIS requirements. Without a written request from USCIS regarding information concerning a job creating entity, that job creating entity may not want to divulge such information for fear of disclosure of trade secrets. Additionally, it is unclear how USCIS will handle submissions of projects or new commercial enterprises that never moved forward.

Lastly, USCIS’ statement that it will request to review any updates to regional center filings calls into question whether USCIS believes that regional centers have an ongoing duty to update USCIS. The relevant regulations are vague, and generally speaking, appear to only require regional centers to annually provide USCIS with information to demonstrate that the regional center is continuing to promote economic growth (i.e., submission of the Form I-924A). Given that regional centers already annually file the From I-924A, it appears unclear under what statutory or regulatory authority USCIS could require a regional center to provide information and data more than annually.

To that end, it is noteworthy that USCIS specifically states the following: “If you decline to participate in a compliance audit, USCIS may follow-up with you separately regarding compliance with program requirements.” What is certain is that each regional center operator should immediately develop internal protocols in the event of a USCIS site-visit, and consider training their staff to identify an individual from USCIS and how to handle questions from USCIS. The regional center may wish to designate a point person to be contacted in the event of a site visit and to handle all USCIS questioning, as USCIS notes that any information provided during a site-visit will become part of the regional center’s record. Having a plan in place not only can help everyone respond appropriately in this type of situation and can also help alleviate any panic that may occur when a government agent shows up.

Posted in EB-5 Program, USCIS

EB-5投资移民的一个关键要求是需要每个投资人以优势证据(“preponderance of evidence”)表明,他们投资到新商业企业的资金来自合法来源。由于许多国家的货币限制,投资人可能会通过私人资金交换的方式来与第三方互换货币。这种类型的私人货币兑换和在中东流行的“哈瓦拉”系统可能比较相似。

在典型的EB-5货币互换中,投资人将以本地货币转入第三方(实体或自然人)的账户中。然后,第三方再以等额的美元资金转入投资人的海外账户。投资人然后把收到的美元投资到一个新的商业企业。该投资人将妥善记录此货币互换交易,并提交I-526请愿书。通常情况下,投资人并没有提供关于第三方资金来源的任何信息.

直到最近,美国移民局并没有质疑协助货币互换的第三方的资金来源。不过,美国移民局似乎已经改变了内部政策,并已开始对每个使用第三方协助资金交换的案件发出补件要求。该政策似乎针对所有第三方,无论是实体还是自然人。因此,已经提交I-526申请,但未提供文件证明第三方资金来源的投资人应开始考虑,并为可能发出的补件要求做准备。尚未提交I-526申请,但打算使用第三方资金交换方式来将货币转到美国的投资人应考虑收集有关第三方资金来源的文件,这样可能有助于减少收到补件要求的可能性。

Posted in EB-5 Program, USCIS

A crucial requirement of the EB-5 Program is that each individual demonstrate by a preponderance of evidence that the monies invested in a new commercial enterprise were derived from a lawful source. Due to currency restrictions in many foreign countries, individuals may swap currency in a private exchange of funds. This type of private currency exchange can be similar to what is known as a “Hawala” system that is popular in the Middle East.

In the typical EB-5 currency swap, an individual will transfer funds in a local currency to a third party (an entity or a natural person). The third party will then transfer to an account of the individual an equivalent amount of funds in U.S. dollars. The individual will then take those U.S. dollars and use them to make an investment in a new commercial enterprise. That individual would properly document this transaction, albeit, typically without any information on the source of the third party’s funds, and file an I-526 Petition.

Until recently, USCIS did not question the source of funds of the third party assisting in the currency swap. However, it appears USCIS has shifted their internal policy and has started issuing requests for evidence for each case where a third party assisted in the exchange. This appears to be the case regardless of whether the third party is an entity or a natural person. Individuals who have previously filed an I-526 Petition without documenting the source of funds for the third-party should consider preparing for the potentially issuance of a request for evidence. Individuals who have not yet filed an I-526 Petition, but intend to use the third-party capital exchange method for transferring funds, should consider collecting documents regarding the source of the third party’s funds, which may help reduce the chances of a request for evidence.