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EB-5 Insights

Where Government Policies and Business Realities Converge

Posted in Department of Homeland Security, Immigrant Visa, Immigration, Legislation, Visa

Today, the House Judiciary Committee will consider H.R.5203, the Visa Integrity and Security Act of 2016.  The bill is authored by Representative Randy Forbes of Virginia.

The bill’s purpose is to enhance security procedures for the processing of both immigrant and nonimmigrant visas.  We provide a sectional summary of the bill below.

Section 2 of the bill adds new section 211A to the Immigration and Nationality Act (INA) to require that all petitions and applications filed with the Department of Homeland Security (DHS) or a consular officer contain all required signatures.  In the case of immigrant visa applications, the bill requires that each application shall be signed in the presence of the consular officer, and verified by oath.  Section 211A also specifies that all documentation provided in support of either an immigrant or nonimmigrant visa must be translated into English.  Section 211A requires that no petition or application may be approved until any additional information requested by DHS or a consular officer is provided consistent with any deadline specified in the request.

New section 211B mandates that background checks be conducted for all petitioners or applicants to determine whether an individual poses a “national security threat” or is otherwise ineligible for a visa or admission to the United States.  The background check required in this section “shall include” a review of each individual’s social media activity.  Further, the section requires that for nationals of Iran, Iraq, Libya, Somalia, Syria, Sudan, Yemen, or another country the DHS Secretary “determines appropriate,” a security advisory opinion must be completed prior to issuance.  The section outlines certain exceptions to this requirement.

In the case of petitions and applications based upon a biological relationship, section 211B requires that a genetic test must be obtained proving the biological relationship between petitioner and beneficiary, and that such test must be submitted at the time of application.  The bill specifies that the test shall be obtained at the expense of the petitioner or applicant.  Finally, the section requires that DHS must conduct an in-person interview with every person seeking “any benefit” under the INA, with the exception of a work authorization.  The section permits the Secretary to waive this requirement for individuals 10 years of age or younger.

Section 3 directs DHS to prepare a plan for the use of “advanced analytics” software to detect immigration benefit fraud and potential national security threats.  Section 3 also requires DHS to complete a benefit fraud assessment by fiscal year 2021 for the following visa categories: VAWA self-petitioners, visas issued under section 101(a)(15)(K) (spousal and fiancé), visas issued under section 101(a)(27)(J) (juvenile), visas issued under section 101(a)(15)(U) (U visas for victims of crime or those aiding law enforcement), visas issued under section 101(a)(27)(C) (special immigrant—minister), applications for asylum under section 208, applications for adjustment of status under section 209, and petitions for visa or status under section 201(b).

Section 4 provides authority to the Secretary of State to impose surcharges to support visa security activities.  Section 4 also amends the Homeland Security Act of 2002 to require, within four years following enactment of the bill, the assignment of DHS personnel to “each diplomatic and consular post at which visas are issued.”  The section spells out the requirements for cooperation from the Department of State to implement this requirement.

Section 5 of the bill amends section 291 of the INA concerning the burden of proof upon a petitioner or applicant for an immigration benefit.  The proposed amendment would change the current standard, “to the satisfaction of the consular officer” to the standard that each individual prove eligibility or admissibility by “clear and convincing” evidence.

Finally, Section 6 mandates a report to be conducted by the Government Accountability Office (GAO) to “review and report to Congress on the security of nonimmigrant and immigrant visa application processes.”

GT will monitor the House Judiciary Committee’s consideration of this legislation and will provide updates here in relation to the bill’s progress in the House of Representatives.

 

Posted in EB-5 Investment, Firm News, Uncategorized

EB5Investors Magazine has profiled five attorneys from Greenberg Traurig, LLP in its list of the “Top 25 Immigration Attorneys in the EB-5 Industry.” Kate Kalmykov, Laura Reiff, Bruce Rosetto, Jennifer Hermansky, and Dillon Colucci were selected through a combination of community member votes, input from the editorial board, and analysis from the EB5 Magazine in-house team.  Kalmykov and Hermanksy are both recognized as Top EB-5 Immigration Attorneys; Reiff is highlighted for her specific experience in legislative work; Rosetto is recognized as a Top 15 Corporate/Securities Attorney; and Colucci is recognized as a Top 5 Rising Star. This is the fourth consecutive year Kalmykov, Reiff, and Hermansky have been selected, while Rosetto and Colucci are making their debut on the 2016 list.

To read the full press release, click here.

 

Posted in Firm News

Pennsylvania Super Lawyers magazine recognized attorneys Matthew Galati and Jennifer Hermansky as a “Rising Stars” in Immigration law for 2016.  According to the Super Lawyers website, the Rising Star selection process is based on peer recognition and professional achievement, as well as a third party research. Hermansky has been ranked as a Super Lawyer since 2014.  This is Galati’s first time on the Rising Stars list.

To read the full press release, click here.

Posted in Department of Homeland Security, E-Visa, E-visa Process, U.S. Customs and Border Protection (CBP), Visa, Visa Waiver Program

On May 9, 2016, the Department of Homeland Security (DHS) Customs and Border Protection (CBP) released a statement clarifying that as part of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, those individuals utilizing the Visa Waiver Program (VWP) with an Electronic System for Travel Authorization (ESTA) to travel to the United States must have an e-Passport as of April 1, 2016.  This was initially announced in August 2015 to give foreign travelers notice to obtain a new passport, if necessary.  If a traveler does not have an e-Passport but is otherwise eligible to travel under the VWP, he or she will need to apply for a valid nonimmigrant visa obtained from a U.S. Embassy or Consulate abroad before traveling to the U.S.

The e-Passport is an enhanced secure passport that has an embedded electronic chip.  It conforms to international standards for securing and storing information for both the passport and the passport holder.

Posted in Visa

In a recent Law360 article, Nataliya Rymer, Of Counsel in Greenberg Traurig’s Philadelphia office, addresses the DOS’ prudential visa revocations and its impact on foreign nationals, employers, and school officials.  Nataliya reviews the State Department’s broader application of prudential visa revocation of late and the low burden of proof used by the agency to determine whether to proceed with the process.  To read the full article click here.

 

Posted in EB-5 Investment, Securities Law

Nearly all U.S. broker-dealers are members of the Financial Industry Regulatory Authority (FINRA).  FINRA regulates, and provides oversight and guidance for its member firms.  When a broker-dealer becomes a FINRA member, they enter into a membership agreement which, among other things, specifies which financial products and services the broker-dealer is permitted to offer to its clients.  Engaging in securities transactions that are not authorized by broker-dealer’s membership agreement can subject that broker-dealer to penalties and enforcement actions.

Many broker-dealers whose membership agreements grant them authority to sell private placements assume that this gives them the ability to sell EB-5 securities.  However, if a firm has authority to sell private placements, that does not necessarily mean that they are qualified to sell EB-5 securities.  While sold as a private placement within the U.S., EB-5 securities are a specialized product which require additional controls, policies and procedures.  EB-5 issuers who seek to engage a broker-dealer to sell their offerings, should learn about that broker-dealer’s experience with EB-5 securities.

An existing broker dealer can seek permission from FINRA to sell new products by filing a continuing membership application (CMA).  Under FINRA Rule 1017, a member firm is required to submit a CMA when there has been (or will be) a “material change in business operations.”  In interpretative guidance, FINRA has stated that whether or not an event is a “material change in business” ultimately depends on “an assessment of all relevant facts and circumstances.”  See NASD NTM 00-73.  The factors to be considered are: the nature of the proposed expansion; the relationship, if any, between the proposed new business line and the firm’s existing business; the effect the proposed expansion is likely to have on the firm’s capital; the qualifications of the firm’s personnel; and the degree to which the firm’s existing financial, operational, supervisory, and compliance systems can accommodate the new business line.  Depending on the broker-dealer’s current business and membership agreement, selling EB-5 products for the first time may require the broker-dealer to file a CMA.  Broker-dealers that are uncertain whether or not they have the authority to distribute EB-5 securities (or any other product), should consult with counsel, and if in doubt, can solicit an opinion from FINRA by filing a materiality consultation request.

Greenberg Traurig’s Broker-Dealer group has considerable experience dealing with sales of EB-5 securities and other issues involving the filing of CMAs. Issuers with questions about engaging a broker-dealer and broker-dealers looking to submit a CMA or a materiality consultation request should contact a GT attorney.

Posted in EB-3, Visa

I recently returned from a month in Vietnam meeting with clients and potential immigrants to the United States.  Over the course of the past five years and in my travels to Vietnam, I have watched the EB-5 program grow in popularity as a tool for Vietnamese nationals to self-sponsor for a U.S. green card.  In fact, Vietnam now ranks second in EB-5 visa usage worldwide.

The growing interest in immigration to the U.S. has also spurned in Vietnam a new trend, with some immigration agents promoting the EB-3 visa program, to target clients that cannot afford the EB-5 program or wish to spend less money to immigrate to the U.S.  This development is alarming, as in many cases, the way the EB-3 program is being described and offered to the Vietnamese public is inconsistent with the U.S. Citizenship and Immigration Service (USCIS) and U.S. Department of Labor Regulations (DOL) laws and regulations.  In the most egregious cases, these EB-3 for sale programs intentionally circumvent the legal requirements and are fraudulent.

By way of background, EB-3 stands for Employment-Based Third preference category – a concept long existent in U.S. immigration law and a valid means to a green card when properly used.  Employment-based sponsorship in U.S. immigration is divided into several preference categories, with the Employment-Based Third category being reserved for sponsorship for positions requiring:

  • Less than two years’ training or experience (unskilled workers).  This is predominately the focus of the Vietnamese EB-3 for sale programs; or
  • At least two years of experience in the field of expertise (skilled workers); or
  • A Bachelor’s degree.

The process of employment-based sponsorship in the EB-3 category entails a three step process:

1.  A PERM application is processed and filed by the employer with the DOL.  The process involves the U.S. employer engaging in various methods of recruitment to find U.S. workers for the position.  This is because the DOL’s main purpose is to ensure that U.S. workers get preference for jobs.  The DOL determines the prevailing wage rate for the position that the employer is required to pay. Only after recruitment is completed, and if the employer can show that it was not able to find minimally qualified, able, or willing U.S. workers for the position, would the DOL certify and approve a PERM application.  If the sponsoring organization receives applications from interested individuals in the U.S. in response to the ads but does not review and interview the applicants or disclose receiving the applications to the DOL, the sponsoring company and all persons involved in the process can be subject to enforcement action.

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Posted in Events

The EB-5 Investment Coalition will be hosting a legislative workshop in Washington, D.C. from April 12 to April 14, 2016, in order to continue the Coalition’s efforts to build the path to long-term EB-5 Regional Center Program Reauthorization.  The legislative workshop will include interactive and thoughtful roundtable discussions with experts in the EB-5 industry who will confront some of the toughest policy and political issues facing the industry. Participants in the roundtable include Greenberg Traurig attorneys Laura Reiff, Kate Kalmykov, Matthew Virkstis, Kristen Ng, and Legislative Professional Robert Maples. The legislative workshop will also offer a unique experience and insight into Capitol Hill, including attendance at a Senate Judiciary Hearing on EB-5 reform, visits with elected officials, a reception, breakfast, and an EB-5 staff briefing on the Hill with some of EB-5’s biggest champions in the Senate and the House of Representatives.  This is a unique and intimate event that will allow for interaction with fellow stakeholders and Members of Congress.

Register here.

Posted in China, Immigration, Visa

Greenberg Traurig attorney Kate Kalmykov recently appeared on China Business Network (CBN), China’s largest financial and business informational TV channel with an audience of 600 million viewers within China, Hong Kong and Singapore.  Amongst its many initiatives, CBN partners with the United Nations Development Programme to enhance China’s participation in global dialogue on a variety of topics.

Kate appeared on the VISAlution television program to discuss the EB-5 program including current trends, visa usage and immigration due diligence considerations.  VISAlution is a talk show that focuses on providing audience members with up to date information on immigration, overseas education, overseas investment, and international travel.

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Posted in China, Events

Greenberg Traurig Attorneys, Kate Kalmykov and Laura Reiff, were honored to again receive the “Summit Ambassador Award” awarded by Invest in America during the summit in Shanghai on March 11-13.

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Award recipients including Greenberg Traurig Laura Reiff and Kate Kalmykov

 

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Kate Kalmykov accepts the Summit Ambassador Award.