Following is the Chinese translation of a previously published blog post:

我们曾经报道,美国移民局(USCIS)最近改变了其允许以借款作为投资人合法投资的政策。许多相关人士都提到,投资人以并非完全拥有的房产做抵押贷款的I-526申请被拒。美国移民局指出,借款可以作为投资人的资金,如果:(1)投资人对借款负有首要的和个人的偿还义务,并且(2)投资人实际拥有的抵押资产达到或超过借款的价值。

尽管有许多相反观点的法律论争,行政上诉办公室(AAO)认为Matter of Soffici支持所有借款的现金款项必须要作为债务评估。这一观点与先前的决定,是非常大的改变, 因为申请人主张的借款的现金款项实质上就是新商业实体(NCE)而不是投资人获得的款项。相关人士对移民局的错误法律理论表示关切,近期有报道说针对此问题,联邦法院有等待审判的案件。

我们采用新的法律途径,成功对中国物权法给予法律和事实的论证。在中国有许多事实情况和物权法概念适用于这些债务案子,包括财产价值,中国法下的财产所有权,可分割物权法概念,中国抵押贷款法,以及债务/信用/出资原则。因此,即使移民局继续依照其新政策审理申请,抵押借款申请仍然可被批准,如果申请的结构正确。移民局也正在签发批准书。对那些提交了申请,担心其申请因移民局政策变化而是否合理的EB-5申请人来说,这是一个非常令人欢迎的消息。

Special thanks to Jim Wang.

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Photo of Kate Kalmykov Kate Kalmykov

Kate Kalmykov is based in our New York and New Jersey offices and has over two decades of experience in business immigration matters. Kate currently Co-Chairs the Global Immigration & Compliance Practice at Greenberg Traurig. In this role, she works with employers of

Kate Kalmykov is based in our New York and New Jersey offices and has over two decades of experience in business immigration matters. Kate currently Co-Chairs the Global Immigration & Compliance Practice at Greenberg Traurig. In this role, she works with employers of all sizes across a variety of industries in understanding and complying with the immigration laws relating to the hiring and retention of foreign talent. Specifically, her practice focuses on supporting clients and advising them on temporary and permanent residency immigration options for multi-national executive, business, scientific, and information technology personnel. In addition, her practice provides support to companies in the global transfer of personnel. Known by her clients for her out-of-the-box thinking, responsiveness and hands-on approach, Kate is often called upon to assist in developing immigration options and strategies in the most unique circumstances and to respond to complex Requests for Evidence (RFEs), Notices of Intent to Deny (NOIDs) or to appeal denied cases. Likewise, she has also been instrumental in developing employer compliance programs for DOL related filings including H-1Bs and PERMs, as well as for I-9 employment eligibility verification. To this end, she develops and conducts nationwide I-9 compliance trainings and policy manuals for human resources personnel, advises on best practices for E-Verify employers, provides guidance on avoiding immigration-related unfair employment practices claims and has defended and minimized penalties in immigration-related government audits. Kate regularly works with professionals from the firm’s labor, employment, tax and benefits groups, to provide strategic planning on immigration issues within a cross-border framework.

Kate also has deep experience working on all aspects of the EB-5 immigrant investor program. Kate has worked with real estate developers, private equity funds, and other organizations on applications to designate new EB-5 Regional Centers, applications for pre-approval of EB-5 projects; having projects adopted by existing EB-5 Regional Centers; structuring projects to be EB-5 compliant, the sale of existing EB-5 Regional Centers, preparing template I-526 petitions and advice on structuring direct EB-5 projects. Pursuant to the requirements introduced under the EB-5 Reform and Integrity Act, Kate works with EB-5 Regional Centers, EB-5 Projects, Overseas Migration Agents and Broker/ Dealers to develop internal programs for ongoing compliance and to prepare USCIS I-956, I-956F, I-956,G, I-956H, I-956K submissions. Kate has represented thousands of investors in obtaining their green cards through EB-5 regional center projects, as well as direct EB-5 investment opportunities. She also represented and structured the largest EB-5 offering in the Program’s history and has over the course of her career structured over $12 billion in EB-5 deals.

Within the field of immigration law, Kate is a well-known speaker and author. She is often called upon by various media outlets to comment on topics of business immigration law including the Real Deal, the Wall Street Journal, and Law360. Kate has appeared on numerous TV programs related to immigration law including CNN, the Stoler Report, Vietface TV, and China Business Network. Kate is also a prolific writer on the topic of immigration and has been published in immigration practice handbooks for the American Bar Association, American Immigration Lawyers Association, ILW, and in news periodicals that include the New Jersey Lawyer, the New York Law Journal, the New Jersey Law Journal, USA Today, GlobeSt.com, and the Commercial Observer. At the request of the American Bar Association, Kate co-authored the book “What Every Lawyer Needs to Know About Immigration Law,” a guide for non-lawyers on immigration law practice. She has sat on numerous bar association related committees including the American Immigration Lawyers Association EB-5 Practice Committee, the New Jersey Business Immigration Coalition and has chaired the American Bar Association’s, Committee on Immigration and Naturalization, Section of Administrative Law since 2011. Kate has been recognized in various legal surveys including Chambers Global, New York Super Lawyers, the New Jersey Law Journal who ranked as her as a “New Leader of the Bar,” (formerly 40 under 40) in 2012, NJBIZ “Best 50 Women in Business,” 2019, National Law Review, “Go-To Thought Leader: Immigration Law,” 2022, and Lawdragon 500, Leading U.S. Corporate Employment Lawyers, 2020-2022.

Kate is devoted to pro bono matters and has spent extensive time helping clients fleeing conflict and persecution with asylum applications, applying for and obtaining Temporary Protected Status and Humanitarian Parole.