This is the fifth post in a series that discusses how EB-5 investors and their dependents can maintain eligibility for permanent residence and I-829 Petition approval. This blog focuses on accepting certain public benefits that may make an investor and/or his or her dependents a “public charge.”

The Trump Administration has stated that USCIS will start deportation proceedings for any conditional permanent resident or lawful permanent resident who has abused any program related to receipt of public benefits. Additionally, conditional permanent residents and lawful permanent residents alike cannot be a “public charge.” This means an individual who is likely to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at the government’s expense.

USCIS can make a “public charge” finding at the time of the immigrant visa interview for the conditional green card and at the I-829 Petition interview. A finding that the investor or a family member is a “public charge” can lead to denial of the immigrant visa or the I-829 Petition, and commencement of deportation proceedings following the I-829 Petition denial.

Acceptance of the following types of assistance may lead to the determination that the individual is likely to become a public charge:

  • Supplemental Security Income (SSI) under Title XVI of Social Security Act;
  • Temporary Assistance for Needy Families (TANF) cash assistance (part A of Title IV of the Social Security Act–the successor to the AFDC program);
  • State and local cash assistance programs that provide benefits for income maintenance (often called “General Assistance” programs); and
  • Programs (including Medicaid) supporting individuals who are institutionalized for long-term care (e.g., in a nursing home or mental health institution).

Under current USCIS guidance, non-cash benefits (other than institutionalization for long-term care) are generally not taken into account for purposes of a public charge determination. Non-cash or special-purpose cash benefits are generally supplemental in nature and do not make a person primarily dependent on the government for subsistence. Therefore, past, current, or future receipt of these benefits do not impact a public charge determination at present. Non-cash or special purpose cash benefits that are not considered for public charge purposes include:

  • Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases; use of health clinics, short-term rehabilitation services, and emergency medical services) other than support for long-term institutional care;
  • Children’s Health Insurance Program (CHIP);
  • Nutrition programs, including Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs;
  • Housing benefits;
  • Child care services;
  • Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP);
  • Emergency disaster relief;
  • Foster care and adoption assistance;
  • Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary, or higher education;
  • Job training programs; and
  • In-kind, community-based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter).

The Trump Administration is attempting to expand the list of government benefits that could lead to a public charge finding. Specifically, the administration may expand list of “public charge” benefits to include Medicaid, subsidized Obamacare, food stamps, tax credits, or other non-cash government benefits. If an EB-5 investor and/or his or her dependents receive any of these benefits, and then the administration adds those benefits to the list of “public charge” benefits, USCIS may seek to deny the I-829 Petition. As such, EB-5 investors and their family members should try to avoid receiving these benefits following the grant of CPR status. Insurance paid for in the marketplace under the Affordable Healthcare Act should not result in a public charge finding.

This is the fourth post in a series that discusses how EB-5 investors and their dependents can maintain eligibility for permanent residence and I-829 Petition approval. This blog focuses on criminal issues and tax issues.

President Trump’s Executive Order, along with a Department of Homeland Security (DHS) implementation memorandum, prioritizes removable aliens who:

  • Have been convicted of any criminal offense;
  • Have been charged with any criminal offense that has not been resolved; and
  • Have committed acts that constitute a chargeable criminal offense.

Importantly, a criminal conviction is not required for USCIS to start the deportation process for an EB-5 investor or any of his or her dependent family members. Any CPR who has been arrested anywhere in the world for any infraction should reach out to his or her immigration attorney to determine the best course of action.

EB-5 investors and their dependents should disclose to their attorney all arrests and encounters with law enforcement. Even if previous visa applications have been approved in the past, or if an arrest or conviction occurred a very long time ago or for a very minor infraction, such arrest can lead to the initiation of deportation proceedings in the U.S. Failure to disclose arrests or convictions can lead to an I-829 Petition denial and the start of deportation proceedings.

Finally, conditional permanent residents and permanent residents alike are subject to the U.S. tax rules, and may be considered a “resident” for tax purposes if he or she is maintaining her permanent residence in the U.S. as outlined in our previous blog, including being physically present in the U.S. for more than six months a year. Failure to file tax returns as a “resident” of the U.S. when an investor and/or his or her dependents are required to do so could result in the denial of an I-829 Petition. The EB-5 investor can contact his or her accountant for more information.

As we previously reported, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum entitled “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens[1] on June 28, 2018.  This Policy Memorandum was issued in response to President Trump’s Executive Order (EO), “Enhancing Public Safety in the Interior of the United States.” One of the priorities listed in the EO is to remove aliens from the United States where necessary, including those aliens who are deportable or inadmissible, with no exceptions. USCIS has the authority to file a Notice to Appear to start deportation proceeds against EB-5 investors who have already achieved conditional permanent residence in several instances:

  1. There has been a termination of conditional permanent resident status;
  2. There is fraud, misrepresentation, and abuse of public benefit programs; and
  3. There is a conviction for a crime, or even an arrest for a criminal offense where the case has not yet been resolved.

This is a third post in a series that discusses how EB-5 investors and their dependents can maintain eligibility for permanent residence and I-829 Petition approval. This blog focuses on termination of permanent resident status.

An EB-5 investor who has been granted the two-year conditional green card should take steps to protect his or her conditional permanent resident (CPR) status. Spending significant amounts of time outside the U.S. is a serious problem for any permanent resident, including EB-5 investors.  Absences of more than six (6) months from the U.S. can lead to extensive questioning at the airport or point of entry to the U.S. by U.S. Customs and Border Protection (CBP). The CBP officer can determine at the airport that the investor abandoned his or her CPR status. Absences of more than one (1) year may likely result in a finding at the point of entry that the CPR abandoned his or her status.

Additionally, a pattern of trips where the CPR spends significant amounts of time outside the U.S. and only takes short trips into the U.S. could lead to a finding of abandonment. Finally, each member of the EB-5 investor’s family is responsible for protecting his or her own CPR status; each family member must individually meet the residence requirements to avoid abandonment of the green card.

EB-5 investors and their dependent family members should consider the following:

  • Spend as much time as possible physically present in the U.S. Generally, permanent residents of the U.S. should be spending at least six (6) months a year in the U.S. This time can be cumulative; it does not need to be in just one entry to the U.S.
  • If it is not possible to spend six (6) months a year in the U.S., consider obtaining a re-entry permit from USCIS. A re-entry permit is advanced permission to spend longer periods of time outside the U.S. Contact your immigration attorney to understand more about this process.
  • Maintain a residence in the U.S. This can be through the purchase of a home or renting an apartment. Utilities in the investor’s name can also help, as does car ownership.
  • Maintain bank accounts, credit cards, and investments in the U.S. to show financial ties.
  • Maintain insurance in the U.S., including home, health, and life insurance.

CPR investors and their dependent family members should consider carrying with them evidence of their ties to the U.S. after an extended absence abroad in case he or she is questioned at the airport regarding their absence from the U.S.

Additionally, the Trump Administration has stated that it intends to interview all applicants for green cards, which would include EB-5 investors and their family members applying for permanent green cards on Form I-829. During any I-829 Petition interview conducted by USCIS, the officer can ask the EB-5 investor and his or her dependents about their residency in the U.S. and their travel history during the two years of conditional residency. Extended absences from the U.S. and lack of ties to the U.S. could result in a denial of Form I-829.

In order for dependent family members to remain protected, EB-5 investors must maintain their CPR status. If the EB-5 investor is found to have abandoned his or her residency in the U.S., the dependent family members have no basis to file Form I-829 without the investor, even if the dependents are living full-time in the U.S.

[1] As it is issued in accompaniment to the Presidential Executive Order, this Policy Memorandum is assumed to go into effect immediately upon publication.

EB-5 investors should maintain their eligibility for conditional permanent resident status, especially during any period of visa backlog occurring in between the time of I-526 Petition approval and when the investor’s priority date becomes current.

This is the second post in a series that discusses how EB-5 investors and their dependents can maintain eligibility for permanent residence. This post focuses on criminal issues and material misrepresentations on visa applications.

Criminal Issues

President Trump’s Executive Order, along with a Department of Homeland Security (DHS) implementation memorandum, prioritizes removable aliens who:

  • Have been convicted of any criminal offense;
  • Have been charged with any criminal offense that has not been resolved; and
  • Have committed acts that constitute a chargeable criminal offense.

Importantly, a criminal conviction is not required for USCIS to start the deportation process for an EB-5 investor or any of his or her dependent family members. Additionally, any arrest or conviction that occurs during any period of visa backlog, during or after I-526 Petition approval, while the investor and dependents are waiting for the immigrant visa interview, can impact the issuance of the immigrant visa by the U.S. Consulate or the approval of Form I-485 by USCIS. Any investor or their dependent who has been arrested anywhere in the world for any infraction should reach out to his or her immigration attorney to determine the best course of action.

EB-5 investors and their dependents should disclose to their attorney all arrests and encounters with law enforcement. Even if previous visa applications have been approved in the past, or if an arrest or conviction occurred a very long time ago or for a very minor infraction, such arrest can lead to the initiation of deportation proceedings in the U.S. Failure to disclose arrests or convictions can lead to an immigrant visa denial, a Form I-485 denial, or a Form I-829 Petition denial, and the start of deportation proceedings.

Misrepresentations on Visa Applications

A material misrepresentation or fraud on a visa application is a bar to entry to the U.S. on a nonimmigrant visa or a green card. It is very difficult to overcome a finding of material misrepresentation and only very limited waivers are available.

Any visa applications filed by the EB-5 investor or the dependent family members must be filed accurately and with truthful information, including nonimmigrant visa applications. An EB-5 investor with a pending or approved I-526 Petition should consider the following:

  1. Disclose the pending or approved Form I-526 on any DS-160 Application for a nonimmigrant visa, including visitor visas;
  2. Disclose all arrests and convictions on a visa application, regardless of how much time has passed since the commission of the crime or however insignificant the infraction, and even if the conviction was later removed from his or her record; and
  3. Answer employment, academic, and residency history questions consistently with the Form I-526 Petition filed on his or her behalf.

Importantly, obtaining a B visitor visa to give birth to a child in the U.S. can be used as a basis to deny the green card at the immigrant visa interview by the U.S. Consulate. Also, enrolling children in school in the U.S. on a B visa can result in a finding of permanent ineligibility on the part of the parent.

As we previously reported, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum entitled “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens” on June 28, 2018. This Policy Memorandum was issued in response to President Trump’s Executive Order (EO), “Enhancing Public Safety in the Interior of the United States.” One of the priorities listed in the EO is to remove aliens from the United States where necessary, including those aliens who are deportable or inadmissible, with no exceptions. USCIS has the authority to file a Notice to Appear to start deportation proceeds against EB-5 investors in several instances:

  1. There has been an immigration violation and the alien is out of status;
  2. There is fraud, misrepresentation, and abuse of public benefit programs; and
  3. There is a conviction for a crime, or even an arrest for a criminal offense where the case has not yet been resolved.

It is now more important than ever for EB-5 investors to maintain their eligibility for conditional permanent resident status, especially during any period of visa backlog occurring in between the time of I-526 Petition approval and when the investor’s priority date becomes current.

This is the first in a series of blog entries discussing how EB-5 investors and their dependents can maintain eligibility for permanent residence. This blog post focuses on maintaining nonimmigrant status.

EB-5 investors and/or their dependent family members who may be in the U.S. with nonimmigrant status must be careful to maintain that nonimmigrant status to avoid being placed in removal proceedings by USCIS.

Many investors and/or their dependents are foreign students in the U.S. Foreign students in the U.S., including dependents of investors, should understand that they:

  • Must continue studies pursuant to the F-1 or J-1 or M-1 forms issued by the school;
  • Cannot work without permission. Students must work pursuant to CPT or OPT or part-time on campus employment. Students must keep in mind that even unpaid internships or volunteer work can be considered “employment,” thus they must check with their school and immigration attorney to see if the activity is permitted under the student status; and
  • Should check with their lawyer and international students office before: working, changing programs, reducing course load or stopping coursework.

Importantly, the Trump Administration recently changed certain immigration rules as they apply to foreign students. An F, J, or M nonimmigrant begins accruing “unlawful presence,” due to a failure to maintain his or her status on or after Aug. 9, 2018, on the earliest of any of the following:

  • The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity (such as unauthorized employment);
  • The day after completing the course of study or program (including any authorized practical training plus any authorized grace period);
  • The day after the Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain;
  • The day after an immigration judge orders the alien excluded, deported, or removed (whether or not the decision is appealed).

Any EB-5 investor or dependent who accrues more than 180 days of unlawful presence is thereafter barred from entering the U.S. in any category, including on a green card, for three (3) years. Any EB-5 investor or dependent who accrues more than 365 days of unlawful presences is thereafter barred from entering the U.S. in any category, including on a green card, for ten (10) years. Accruing unlawful presence following the violation of student status can bar an EB-5 investor and/or dependent from obtaining the EB-5 green card. It is critical for foreign students to check with their international student office and/or their immigration attorney prior to changing their coursework, reducing coursework, taking time away from school, or accepting any employment, including volunteer positions and unpaid internships.

For EB-5 investors or their dependents in another nonimmigrant status in the U.S., such as H-1B or H-4, L-1 or L-2, and E-1 or E-2, changes to employment can affect underlying nonimmigrant status. Changing employers, location of employment, wage rate and/or position can have an effect on whether the investor is maintaining proper status in the U.S. It is critical for the investor to check with his or her immigration attorney prior to making any changes to employment to ensure he or she is maintaining lawful status in the U.S. Failure to maintain lawful status in the U.S. can lead to the commencement of deportation proceedings and ineligibility for the EB-5 green card.

Starting July 1, 2019, international offices of the U.S. Citizenship and Immigration Services (USCIS) will no longer accept Form I-407, Record of Abandonment of Lawful Permanent Residence Status. On that date and going forward, all I-407 forms must be sent by mail to the address below. USCIS anticipates that processing of the form, from receipt to completion, will take 60 days or less, not including the mailing time to and from outside the United States (and please note that given the below address is a post office box, these notices cannot be sent via courier services like FedEx and UPS).

USCIS Eastern Forms Center
Attn: I-407 Unit
124 Leroy Road
PO Box 567
Williston, VT 05495

For various reasons, foreign nationals who have obtained Lawful Permanent Residence (LPR) status in the United States sometimes choose to voluntarily abandon their LPR status. When these individuals choose to live in another country and maintain residency there, it is a best practice to submit a Form I-407 so that a record of their abandonment of LPR status is filed with USCIS. Once the I-407 form has been accepted and the abandonment is recorded and acknowledged by USCIS, the former LPR-status individual no longer has to be concerned about certain tax requirements to file as a U.S. resident, and he also need not be concerned about maintaining residency in the U.S.

As EB-5 investors are aware, maintenance of their residency is of vital importance. After obtaining Conditional Permanent Resident (CPR) status, the investor must continue to maintain residency in the U.S. or else risk possible deportation or inadmissibility, as discussed in a prior blog post. EB-5 investors and dependent family members should maintain as many ties to the U.S. as possible, and when taking longer trips outside of the U.S., they should apply for and obtain reentry permits and consider carrying evidence of their U.S. ties with them when they return to the U.S. Without the maintenance of residency, a Customs and Border Protection (CBP) officer could find the investor inadmissible for having abandoned residency, and that individual may face an uphill battle when applying to remove the conditions on the green card (filing of the I-829) or when ultimately applying for naturalization by filing the N-400 form (see our blog post here on the residency requirements for maintaining LPR status and for applying for naturalization).

Once abandonment of LPR status occurs, the foreign national no longer need worry about maintaining a residence in the U.S., filing and paying income taxes as a resident, and demonstrating ties to the U.S. to maintain LPR status. Of course, once LPR status has been abandoned, the foreign national may have to apply for entry visas for short trips to the U.S. We note that if someday the foreign national wishes to apply for a new green card, the voluntary abandonment will not be held against him.

The I-407 filing address change discussed above is in keeping with the March 2019 announcement by then-USCIS Director L. Francis Cissna that USCIS intends to shut down all international USCIS offices and shift all duties of these international offices to domestic USCIS offices and U.S. Department of State embassies and consulates. This announcement was confirmed by USCIS this week at the American Immigration Lawyers Association (AILA) Annual Conference.

For more on USCIS, click here.