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EB-5 Insights

Where Government Policies and Business Realities Converge

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

The first hearing of the second session of the 114th Congress on the topic of EB-5 was held in the Senate Judiciary Committee on Feb. 2, 2016. Witnesses included Nicholas Colucci, Chief, Office of Immigrant Investor Program, U.S. Citizenship and Immigration Services, and Stephen L. Cohen, Associate Director, Division of Enforcement, U.S. Securities and Exchange Commission. Their testimony can be found here.

The hearing was well attended, with eleven Judiciary Committee members participating.  Issues of program reform and program integrity topped the agenda. S.2415, the EB-5 Integrity Act, was discussed, as were other programmatic reform efforts including S.1501, the American Job Creation and Investment Promotion Reform Act of 2015. Mr. Colucci testified that regulations from his agency would be forthcoming on some key issues including possible revisions to the way in which the agency evaluates targeted employment area (TEA) designations. The EB-5 Investment Coalition released a statement in relation to the hearing.

The House Judiciary Committee will hold a hearing on EB-5 reform on Feb. 11, 2016, at 10:15 am EST.

Posted in Events

Greenberg Traurig’s EB-5 Team recently attended the EB-5 Investor Magazine Conference in Las Vegas, NV. The 2016 Las Vegas EB-5 Conference was one of the largest ever, hosting hundreds of leaders and political figures in the EB-5 legislation field, as well as other professionals.

Laura Reiff, along with U.S. House Representative Jared Polis and other panelists, discussed EB-5 program reform and advocacy. Kate Kalmykov moderated a panel of experts in a discussion titled “Going Global: Trends in EB-5 Marketing and Due Diligence.” Jennifer Hermansky moderated the EB-5 beginner workshop on loan documents in EB-5.

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Greenberg Traurig EB-5 Team alongside other EB-5 experts from Vietnam.

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Kate Kalmykov moderates the panel on Going Global: Trends in EB-5 Marketing and Due Diligence.

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Laura Reiff discusses EB-5 Program Reform & Advocacy with other panelists.

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Kate Kalmykov and winner Dr. Xing at the Greenberg Traurig booth.

 

Posted in EB-5 Program, Immigrant Visa, Immunity

Applicants to the EB-5 Immigrant Investor program come from all walks of life, ranging from entrepreneurs to surgeons and diplomats. After successfully completing the initial source of funds phase of the EB-5 process and armed with an I-526 Petition approval notice in hand, the next step for any approved EB-5 investor is to process their immigrant visas. Persons outside of the United States will typically process at the U.S. embassy or consulate in their country of residence; those individuals currently present in the U.S. pursuant to a valid nonimmigrant status will typically elect to adjust status to that of a conditional permanent resident from within the United States. This blog post will focus on the requirement to waive certain rights, privileges, exemptions and immunities for those persons adjusting from A, G, or E nonimmigrant status to that of a conditional permanent resident.

The A visa category is generally reserved for foreign officials and employees of embassies or consulates, along with their immediate family members, who are in the U.S. for official business; whereas the G visa category is generally reserved for representatives to international organizations—such as the United Nations—and their employees and immediate family members. Because the recognition and control of these individuals concerns international relations, the U.S. Department of State (DOS) is the primary agency charged with oversight and administration. Pursuant to Article 31 of the Vienna Convention on Diplomatic Relations, current diplomatic agents enjoy near-absolute immunity from U.S. civil jurisdiction, meaning that they cannot be sued in their individual capacity unless the subject matter falls within a narrow set of exceptions. The bigger implication of this international accord is that this class of nonimmigrants is not fully subject to the laws of the United States.

The flip side of this immunity coin presents itself when the A or G visa holder decides that they wish to become a lawful permanent resident, given that the latter concept is wholly inconsistent with the doctrine of diplomatic immunity: if you want to permanently live in the U.S. and enjoy the rights and protections conferred by U.S. law, then you must also be subject to its obligations and judicial power. Indeed, USCIS instructs in its Adjudicator’s Field Manual that “an alien cannot hold both lawful permanent resident status and diplomatic immunity.”[1]

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Posted in Events, Firm News

Greenberg Traurig’s EB-5 team will sponsor the 2016 Invest in America Summit and Exhibition, the largest USA-themed investment conference and exhibition in China, with attorneys Kate Kalmykov and Laura Reiff as VIP speakers. The Summit will again travel to three Chinese cities in 2016. Event dates and locations are:

• March 12-13, 2016 | Shanghai, China | Main Event

• March 17, 2016| Beijing, China

• March 19, 2016 | Shenzhen, China

Invest in America welcomes U.S. investment projects, regional centers, real estate brokerage firms, franchises, private equity and venture capital companies, financial services, attorneys, CPAs, international trade agencies, government officials, and colleges to participate in exhibitions and presentations. The summit also promises investors and business executives who are eager to learn more about investment and business opportunities in the United States.

The two-day conference in Shanghai will include an EB-5 trade show featuring more than 80 exhibition booths, and comprehensive breakout sessions lead by EB-5 industry leaders. As in previous years, the Invest in America planning committee anticipates strong attendance from China and around the world.

The Shenzhen and Beijing events are designed as one-day conferences, exclusively for exhibitors that participated in the Shanghai event. Each location will include a full-day exhibition, migration agent roundtable, exhibitor presentations, a networking luncheon with migration agents, and panel discussions.

• Early bird registration discount of 10 percent off a Shanghai Conference (main location) booth fee, if payment is made by Jan. 31, 2016.

• Extra 10 percent discount for Beijing and Shenzhen booth fees, if participating in all three locations.

For more information, sponsorship opportunities, and to register, please visit http://www.top-eb5.com/.

Posted in Events, H-1B Cap, Immigrant Visa, Immigration, USCIS

As the US economy recovers, the demand for H-1B visas is skyrocketing.  Please join our experienced immigration attorneys for this seminar which will provide important legislative updates and share effective strategies for succeeding this upcoming H-1B cap season.

Topics will include:

  • Lessons learned from the last cap season
  • New fee schedule affecting certain employers
  • Compliance and post-filing changes to the details of employment
  • Cap Gap/STEM OPT and related travel issues
  • Plan B (and C) – alternatives to H-1B
  • Strategies for petition preparation and filing

Sign up for the GT Business Immigration and Compliance H-1B Cap Seminar by clicking on the location below:

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

The EB-5 Immigrant Investor Program is an excellent vehicle for investors with the requisite capital (either $500,000 or $1 million depending on where the destination project is located) to lawfully immigrate to the United States by supporting the U.S. economy through investment and job creation. While all EB-5 applicants must satisfy the same set of requirements, we have found that certain considerations may arise that are particular to the applicant’s geographic area of origin. This blog post will focus on things that investors from Central and Latin America should keep in mind when considering participation in the EB-5 Program.

Taking Care to be in Compliance with U.S. Immigration Law

As a threshold matter, before submitting an I-526 petition as an EB-5 applicant—and during the pendency of your petition once filed with USCIS—potential applicants will want to ensure that they do not run afoul of U.S. immigration law. Previous and ongoing violations of the immigration laws and regulations can present serious issues for investors who are otherwise qualified and who can otherwise satisfy the requirements of the EB-5 Program.

Prior to applying for conditional permanent residency through the EB-5 Program, which ultimately leads to the attainment of a “green card,” many potential investors frequently travel to the United States on a B-2 visitor or tourist visa. The B-2 visa is a common nonimmigrant visa that is intended for a temporary stay in the United States for the purpose of tourism, pleasure, or visitation. This includes coming to the United States on vacation, to visit friends or relatives, to participate in social events, and to seek medical treatment, amongst other purposes. The B-2 visa validity period varies by country, with a maximum validity of 10 years; it generally permits its holder to remain in the U.S. for up to 90 days. An important aspect of a B-2 visa is that its holder attests to having nonimmigrant intent—that is, the B-2 visa holder is stating that they do not intend to permanently immigrate to the United States, that they have no intention of abandoning their foreign residence and that they have ties to such residence abroad, that they have adequate financial arrangements to carry out the purpose of their visit to the United States, and that they intend to depart at the expiration of the granted period of stay.

Problems can arise, however, when an applicant’s conduct gives rise to a contrary inference. For example, a person’s travel history pattern in and out of the United States can be construed by a consular officer or a border official as indicative of de facto residence within the country, even if the applicant in fact has no such intention. A typical travel pattern that could present this predicament, for instance, is one where the individual is staying in the U.S. for all or most of their granted period of stay, to then leave the country for a few days or weeks, subsequently returning to the U.S. and again remaining for most of their granted period of stay. Done repetitively over time, an immigration official could reasonably conclude that the individual is not comporting with the terms of the visitor/tourist visa. To further complicate matters, if that individual were to also own property and assets in the U.S., say a car or a home, the cards could be stacked even more heavily against them, despite maintaining a residence and ties abroad. If found to have violated the immigration laws and regulations, the foreign national’s file would be notated, and this could impact future visa applications, including one through the EB-5 Program. Specifically, if the applicant were to apply and have their I-526 petition approved, when it comes time to process their immigrant visas, they risk the chance of being denied as a result of their previous violations. It is, therefore, imperative that you consult with an immigration attorney before undertaking any lengthy or repetitive travel to the United States, keeping in mind the concept of nonimmigrant intent described above.
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Posted in Events

Greenberg Traurig was proud to support and attend the China General Chamber of Commerce Chinese Lunar New Year of Monkey Celebration Gala in New York City.  Shareholder Kate Kalmykov served on the organizing committee for this year’s gala.  Hundreds of guests within the Chinese and U.S. Business communities attended to support the CGCC and their mission.

Greenberg Trauirg team Dillon Colucci and Kate Kalmykov pose with China General Chamber of Commerce Executive Director Candice Niu.

Greenberg Trauirg team Dillon Colucci and Kate Kalmykov pose with China General Chamber of Commerce Executive Director Candice Niu.

Kate Kalmykov and Dillon Colucci with honoree Stephen Ross of Related Companies.

Kate Kalmykov and Dillon Colucci with honoree Stephen Ross of Related Companies.

Dillon Colucci and Kate Kalmykov with Mayor Michael Bloomberg.

Dillon Colucci and Kate Kalmykov with Mayor Michael Bloomberg.

Kate Kalmykov and David Freylikhman with the Chinese Ambassador.

Kate Kalmykov and David Freylikhman with the Chinese Ambassador.

Greenberg Traurig EB-5 Team Laura Reiff, Dillon Colucci and Kate Kalmykov.

Greenberg Traurig EB-5 Team Laura Reiff, Dillon Colucci and Kate Kalmykov.

Posted in EB-5 Program

Earlier this month, the U.S. Securities and Exchange Commission (SEC) and the Financial Industry Regulatory Authority (FINRA) each published their 2016 exam priorities letters. Each agency publishes an exam priority letter annually in which they identify topics of examination focus for the coming year, recurring challenges faced by firms, and perceived areas of heightened risk to investors and/or the integrity of the U.S. capital markets.

This year, for the first time, the SEC letter specifically mentions EB-5 as an exam priority. The SEC indicated that it will review offerings involving the EB-5 program to evaluate whether legal requirements are being met in the areas of due diligence, disclosure, and suitability.

FINRA, which regulates broker-dealers, also called attention to the EB-5 program in its exam priorities letter. FINRA notes in 2016 it will address concerns that relate to suitability, disclosure and due diligence for private placements, including those made pursuant to the EB-5 program. FINRA made a similar reference to the EB-5 program in its 2015 exam priorities.

As mentioned in a previous post, in 2015, the SEC brought enforcement actions against several individuals and firms for unlicensed sales of EB-5 securities. As the EB-5 industry matures, those in the industry can expect to see even more attention from regulators.

To view a copy of the SEC’s letter, please click here.  To view a copy of FINRA’s letter, please click here.

For more information on the SEC’s 2016 exam priorities, please see our previous blog post in our Financial Services Observer blog.

Posted in Firm News

Greenberg Traurig is excited to welcome former New York City Mayor Rudolph W. Giulani to the Greenberg Traurig family as Global Chair of the firm’s Cybersecurity and Crisis Management Practice and Senior Advisor to the firm’s Executive Chairman Richard A. Rosenbaum. Also joining the firm is former supervisory federal prosecutor Marc L. Mukasey who will serve as Global Co-Chair of our White Collar Defense Practice. Marc previously served as Unit Chief and Deputy Chief Appellate Attorney for the U.S. Attorney’s Office for the Southern District of New York and was a former staff attorney at the Securities and Exchange Commission.

Giuliani and Mukasey will both be joining from Bracewell & Giuliani, a Texas firm whose New York City office was established by the Mayor in 2005. Giuliani Partners’ Managing Director Eric Hatzimemos will also advise Greenberg Traurig Executive Chairman Rosenbaum with respect to the firm’s Strategic Security Practice. Giuliani Partners includes its subsidiary, Giuliani Security and Safety. While Hatzimemos will serve as an advisor at Greenberg Traurig, Giuliani Partners will remain an independent consulting firm that will enjoy a strategic alliance with Greenberg Traurig, assisting the firm’s clients who require investigative work, due diligence, physical and cybersecurity consulting, crisis management and geopolitical counsel, while seeking the expertise of the law firm when legal guidance is required by its client base.

To learn more, please click here.