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Kate Kalmykov

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Kate Kalmykov represents clients in a wide-range of employment based immigrant and non-immigrant visa matters including students, trainees, professionals, managers and executives, artists and entertainers, treaty investors and traders, persons of extraordinary ability and immigrant investors. She also has extensive experience working on EB-5 immigrant investor matters, working with developers across a variety of industries and with private equity funds on developing new projects that qualify for EB-5 investments.

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On Oct. 4, President Donald Trump signed a new “Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System,” which goes into effect Nov. 3 and affects most immigrant visa applicants. This Presidential Proclamation is separate from the Public Charge Rule, which is on hold in the U.S. due to a court injunction, and its implementation at U.S. Consulates has been delayed by the Department of State.

According to the new Presidential Proclamation, with very small exceptions including refugees and asylees, applicants for immigrant visas will need to present evidence to the consular office “to the consular officer’s satisfaction” at the time of their immigrant visa interview that they will be covered by approved health insurance within 30 days of entering the U.S. or that they have enough financial means to pay for “reasonably foreseeable medical costs.” The Presidential Proclamation asserts that “lawful immigrants are about three times more likely than United States citizens to lack health insurance.”…
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In the United States, there are very strict laws in place to protect investors.  These laws are administered by a governmental agency known as the U.S. Securities and Exchange Commission (SEC).  The mission of this agency is to regulate the U.S. markets, protect investors from fraud, ensure fair, systematic, and efficient markets, and facilitate capital development.

The EB-5 program is a unique path towards a green card that allows an individual to self-sponsor them and their family members for a green card by investing $500,000 in a U.S. business that will create ten or more jobs in the U.S.  The advantages of the EB-5 are numerous:

  • It doesn’t require an employer or family sponsor
  • It allows investors to live anywhere in the United States (not necessarily by their EB-5 investment)
  • It allows them to travel freely in and out of the U.S. as a permanent resident
  • It allows them to have work authorization
  • It allows their children to attend university as a resident once they obtain a green card

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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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