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EB-5 Insights

Where Government Policies and Business Realities Converge

Posted in EB-5 Program, USCIS

U.S. Citizenship and Immigration Services (USCIS) will hold an EB-5 Stakeholder Teleconference on Wednesday, April 23, 2014 from 2:30pm to 4:00pm (EST).   Stakeholders are invited to participate telephonically to discuss future regulatory changes for the EB-5 Immigrant Investor Program. USCIS is working towards making regulatory improvements to enhance the efficiency and integrity of the EB-5 program.

USCIS officials invite feedback and input related to:

  • Strategies for combating fraud and abuse
  • Methods for improving current EB-5 regulations
  • Requirements relating to eligibility and filing

In order to register for this event, please visit the registration page located here.  Upon submitting your email address on this page, select ‘Subscriber Preferences’ and navigate to the ‘Event Registration’ tab.  Once here, you will be prompted to answer several questions, and then you may submit your registration.

Any questions or issues relating to the registration process should be directed to the following email address:  public.engagement@uscis.dhs.gov.

Posted in Immigrant Investor

After the I-526 petition is filed with USCIS, the government will issue a Form I-797, Notice of Action –Receipt Notice.  This document will contain a USCIS assigned Receipt Number.  An investor may then go online to www.uscis.gov and enter their Receipt Number to monitor the progress of the adjudication.

Many investors in China, and from around the globe, experience difficulty in receiving the USCIS Receipt Notice due to foreign mailing addresses.  When USCIS cannot deliver the Receipt Notice to an address abroad, the post office will return the Notice to USCIS as undeliverable.  In these instances, typically the USCIS Online Case Status System will show an ‘error’ message stating that the post office returned a document as undeliverable and that if the investor does not contact USCIS within 180 days, a new application/fee will be required.

It is recommended that investors contact their immigration counsel to determine whether the Receipt Notice has been received in conjunction with your I-526 petition.  The Receipt Notice is prima facie evidence that the petition remains pending adjudication, in the order received, with the Service.   Therefore, if immigration counsel has received the Receipt Notice, the above-referenced message on the USCIS Online Case Status System should be disregarded.  Please contact your Greenberg Traurig EB-5 immigration attorney with any questions regarding the I-526 petition process.

Posted in EB-5 Program, Immigrant Investor

Greenberg Traurig EB-5 attorney Cory Richards recently published an article on EB5 Investors blog entitled “What do the Chinese Real Estate Market and EB-5 have in common?” The article is particularly relevant to Chinese investors who are determining source of funds options for their EB-5 investment. The rapid growth in the real estate market has resulted in a sharp increase in property owners’ equity, making mortgage loans an attractive option for Chinese investors. The full article, which outlines the requirements necessary for Chinese investors to utilize mortgage loans as source of funds, may be read here.

Posted in Events

The Business Immigration & Compliance Practice of Greenberg Traurig announced today that it will co-host an EB-5 seminar with local migration agent partners in South America. The conference is slated for May 28th and 29th in São Paolo, Brazil, and will be organized to provide regional centers with the opportunity promote their projects and meet with South American investors. Please save the date and look for more details to follow on EB-5 Insights.

Posted in EB-5 Program, General

Greenberg Traurig EB-5 Attorney Kate Kalmykov was recently quoted in a CNNMoney article entitled “Rich Chinese overwhelm U.S. visa program,” which outlines the surge of interest among the Chinese in the U.S. EB-5 Immigrant Investor Program. According to the article, Chinese nationals account for more than 80% of EB-5 visas issued by the United States. Kalmykov attributes this statistic to various desires of Chinese nationals, including “a way to send their children to college, escape heavy pollution and enjoy an improved quality of life.”

To read the full article, please click here.

Posted in Speaking Engagement

Earlier this month, several members from Greenberg Traurig’s EB-5 team attended EB5 Investors magazine’s Las Vegas EB-5 Conference featuring keynote speaker Congressman Jared Polis, Chair of the NewDem Coalition’s Immigration Task Force. At the conference, EB-5 attorney Laura Reiff moderated a panel discussion entitled ” EB-5 Program Advocacy: How the Program Could Change in 2014 and Beyond” with Congressman Polis, Bill Gressler and Pat Hogan. Laura and Congressman Polis discussed the EB-5 legislation the Congressman recently unveiled in the House. Dillon Colucci and Steve Anapoell from the EB-5 team also participated in the conference, with Steve serving on the “EB-5 Securities: Rising Role of Broker Dealers” panel discussion.

Bill Gressler, Congressman Jared Polis, Pat Hogan and Laura Reiff.

 

Posted in Immigrant Investor

A primary motivation for many EB-5 investors is acquiring permanent residency status for their children in hopes that they can attend American universities and secure jobs in the United States upon graduating. Under current immigration law, in order for one to qualify as a derivative applicant and be eligible for immigration benefits along with the primary applicant (the primary applicant being an EB-5 investor), the individual must be either the primary applicant’s spouse or child.  A “child” is defined in the Immigration Nationality Act as an individual who is unmarried and under the age of 21.  Once a child reaches the age of 21, he or she is no longer eligible for immigration benefits based on the relationship to the parent, which is known as “aging out.”  Prior to the enactment of the Child Status Protection Act (CSPA) in August of 2002, a derivative child applicant who turned 21 at any time prior to receiving permanent residence was no longer considered a child for immigration purposes.  This means that even if the child’s parents filed an application prior to the child’s 21st birthday and the application is currently pending, the child would no longer be deemed eligible for immigration benefits under his or her parent’s EB-5 investment.

Congress recognized that many children were aging out because of adjudication delays and created the Child Status Protection Act (CSPA) to remedy this situation.  According to USCIS, the CSPA is designed to protect a beneficiary’s immigration classification as a child when he or she ages out because of adjudication delays at immigration.  The beneficiary’s age essentially freezes on the date the petition is filed until the date the petition is approved, which helps protect a child from aging out as long as the petition was filed prior to his or her 21st birthday. Once the petition is approved, the child’s age unfreezes and he or she must seek to acquire permanent residence within one year of a visa becoming available.

It is possible that a visa may not be immediately available and CPSA does not protect against visa backlogs. There are 10,000 EB-5 visas available for all primary and derivative applicants annually. Visa retrogression can occur if the State Department believes there will be more people applying for a visa than the amount of visas available in the fiscal year, or if one country is applying for a significant share of a visa category. For example, Chinese nationals apply for a significant share of the EB-5 visas available each year which causes the State Department to issue a warning that the EB-5 visa may retrogress for Chinese nationals. CSPA only allows the time a petition (e.g. an I-526 Petition) was pending to be subtracted from the beneficiary’s biological age at the time a visa becomes available so the applicant is not penalized for the time the petition was pending with USCIS.  Even with the allowed subtraction of time, this could result in some children of EB-5 investors “aging out” if an I-526 Petition is approved but there are no EB-5 visas available, depending on how long it takes for an EB-5 visa to become available. While the CPSA has essentially removed accountability from applicants once the application is filed, it is extremely important that EB-5 investors still file their petitions as long as possible before any of their children’s 21st birthdays in order to mitigate the risk of that child “aging out” during the EB-5 visa process.

 

Posted in EB-5 Program

Greenberg Traurig EB-5 attorney Kate Kalmykov has been traveling throughout Asia over the past several weeks meeting with agents, local media (access to recent interview here) and GT EB-5 clients. Kate’s meetings in Shenzhen, Guangzhou, Hangzhou, Fuzhou, Hong Kong, Hanoi, Ho Chi Minh City and Siem Reap Cambodia have revealed, among many other things,  two trends in the increase for EB-5 demand: the urgency to submit applications before the predicted retrogression this summer; and the recent cancellation of Canada’s EB-5 Program.

Additionally, Kate has been preparing for upcoming EB-5 conferences: the U.S. Investment Immigration Forum 2014 Conference in Shenzhen on March 17th- 19th, and The Invest in America 2014 Summit and Exhibition on March 22nd – 23rd in Shanghai.  Several others from the GT EB-5 team will join Kate for these events, including Steve Anapoell and Laura Reiff.  For more information or to register for either conference, please click here to email Kate Kalmykov.

EB-5 Seminar in Fuzhou

Presentation to Clients of China Merchant Bank

Meeting with U.S. Investment Immigration Forum 2014 Conference Organizers

Posted in EB-5 Program

The State Department issued EB-5 visa availability projections in their March 2014 Visa Bulletin which did not contain any mentions of retrogression of the EB-5 visa category. The EB-5 visa category is listed as “Current” under section E “Visa Availability in the Coming Months” without any mention of a possible cut-off date being established. This is similar to the situation which occurred approximately 14 months, when the State Department issued a preliminary warning in December 2012 that it would establish a cut-off date for Chinese nationals in the EB-5 visa category, only to reverse itself two months later.

The Chief of Immigrant Control & Reporting of the State Department, Charlie W. Oppenheim, spoke to the American Immigration Lawyers Association (AILA) and described the demand for EB-5 visas as “manageable.”  Mr. Oppenheim expects to provide another update on whether a possible cut-off is necessary in the June or July 2014 Visa Bulletins. It is important to note that Mr. Oppenheim noted that EB-5 visa demand increases during the summer months and in the past two fiscal years, almost one-third of EB-5 visas were used during the period from July to September. This indicates that individuals with approved I-526 Petitions should not wait until these “busy” months to apply for a visa, and instead should apply as soon as possible after receiving I-526 Petition approval. This would reduce the likelihood of any issues with retrogression affecting an individual’s EB-5 visa.

This news is consistent with our prior posts which warned that EB-5 investors should think hard before delaying the filing of an I-526 Petition or taking any other actions directly related to the possibility of EB-5 retrogression. Furthermore, USCIS predicted on its stakeholder call there will be a slowdown in I-526 Petition processing times in the coming months as the transition to the Immigrant Investor Program Office (IIPO) continues. This coupled with the March 2014 Visa Bulletin indicates a likelihood that EB-5 visa retrogression will not occur this fiscal year.

Posted in EB-5 Investment, EB-5 Program, TEA

On March 6, 2014, Representative Jared Polis (D-CO), along with Representative Joe Garcia (D-FL), Representative Matt Salmon (R-AZ) and Representative Mark Amodei (R-NV), introduced The American Entrepreneurship and Investment Act of 2014. A copy of the bill and an official Section by Section overview have been made available.

The legislation would, among the other items listed below, make the Regional Center program permanent and improve the program by addressing key administrative and substantive concerns. Some of the specific proposals in the bill include:

  • Improved definition of Targeted Employment Area (TEA) designations
    • Codifies the current TEA designation authority, which leaves such designations up to the states, which are best equipped to determine local employment needs. This is consistent with USCIS’s May 30, 2013 “EB-5 Adjudications Policy (PM-602-0083);
    • Lowers the minimum capital investment required from $1,000,000 to $500,000; and
    • Expands the TEA designation for areas where a military installation was closed and where a State or the Federal government has designated an area as an economic development incentive program. Continue Reading