Transcript The Boring Part of EB5

The Boring Part of EB5
The Immigration Process
The Numbers
• Every year, approximately 90% of individual I526 petitions filed are regional center affiliated
▫ 1,955 petitions filed in 2010 in total
• In 2010, there were 1885 EB5 visas used
▫ In 2009, there were 4,218 EB5 visas used
• In 2010, 89% of I-526 petitions were approved
(1369 petitions filed)
• In 2010, 83% of I-829 petitions were approved
(274 petitions filed)
EB5 Visa Usage by Country
COUNTRY
VISAS ISSUED
PERCENTAGE
China (Mainland)
772
41%
South Korea
295
16%
U.K. & N. Ireland
135
7%
China (Taiwan)
94
5%
India
62
3%
Other Countries
527
28%
The Process in a Nutshell
• File I-526 Petition
• Investor obtains Conditional Green Card with a
validity period of 24 months
• At 21 months, investor files I-829, Petition to
Remove Conditional Status
▫ Approved, investor obtains unconditional green
card
 Eligible to naturalize after five (5) years of green
card status
▫ Denied, possible referral to deportation
EB5 Requirements
• Investor must invest or actively in the process of
investing $500,000 or $1 million dollars in an
enterprise
• Investor must make a contribution of capital that is
“at risk”
• Capital invested must have been obtained through
lawful means
• Enterprise must create 10 full time jobs
• Investment must be made in a “new commercial
enterprise” or “troubled business”
• Investor must be engaged in the management of the
enterprise
“Investment” and “Capital”
• USCIS defines an investment to mean the
contribution of capital.
▫ No loan arrangements
▫ Capital must be “at risk”
• Capital can be
▫ Cash or cash equivalents
▫ Equipment, inventory or other tangible property
▫ Loan secured by investor’s assets
Actual Commitment of Capital
• Simple transfer of money into the corporate
account does not constitute commitment of
capital.
▫ Must have some meaningful action with the
money
• Escrow accounts with proper escrow agreements
are permissible.
▫ Unequivocal release of funds upon approval of I526 or adjustment of status
Source of Investment Money
• Invested capital must have been obtained
through lawful means:
▫ Income
 Business records or tax returns
▫ Sale of house, business or other asset
 FMV – third party valuations
▫ Equity positions in existing businesses
 Proof of dividends or certificates of stock
• Be aware of OFAC for Iranian investors
▫ Office of Foreign Assets Control (Dept. of Treas.)
Job Creation
• Ten permanent full time employees before filing
I-826
▫ Direct, Indirect and Induced
▫ No independent contractors
• Full time means 35 hours a week
▫ Job-sharing is allowed
 Two or more employees share one FT job
 As opposed to two part-time jobs
I-526 Petition
• Form I-526
▫ Due for revision in 2011
• Cover Letter summarizing Investor/Petitioner’s
qualifications and eligibility for EB5 green card.
• Supporting Documentation
• Filing Fee of $1,500 made out to USCIS
• G-28 (Attorney Representative Form)
I-526 Supporting Documentation
• Proof of Commercial Enterprise
▫ Corporation documents
▫ Business license
▫ Proof of TEA designation
• Investment
▫ Source of money
▫ Investment “at risk”
• Job Creation
▫ Comprehensive Business Plan
I-526 Supporting Document, con’t
• Investor’s management position
▫ Statement of investor’s position and job
description
▫ Evidence petitioner is corporate officer
I-829 Petition Process
• Must file within 90 days before the expiration of
conditional green card
• If I-829 is not filed, green card status is
automatically terminated
▫ NTA will very likely issue
• Two purposes of I-829 petition
▫ Fraud detection and prevention
▫ Compliance to the requirements of the EB5
program
The 5 Statutory Reasons for Denial
• Enterprise was established for sole purpose of
evading U.S. immigration laws
• Enterprise was not actually established
• Investor did not actually invest and sustain
capital into the enterprise
• Investor’s capital was obtained through illegal
means
• Investor not otherwise conforming to
requirements of EB5 program
I-829 Petition
• Form I-829
▫ Due for revision in 2011
• Copy of green card
• Supporting Documentation
• Filing Fee of $3,835 for primary investor
▫ Additional $85 for each additional dependent
family member
• G-28 (Attorney Representative Form)
I-829 Supporting Documentation
• Commercial Enterprise was established
• Investor actually invested the capital
• Investor sustained the enterprise and the
investment through the 24 month period
• Investor created or can be expected to create
within a reasonable time 10 full time jobs
• Enterprise maintained the same number of
existing employees as during the pre-investment
level if enterprise was a troubled business
Family Members in the I-829 Process
• All family members included in the I-526
petition can be included in the I-829 even if:
▫ Children are over 21 years old
▫ Children have gotten married
▫ Spouses have divorced
• Dependent family members can have their
conditional status removed only if USCIS
removes conditional status of primary petitioner
(investor)
Adjustment of Status vs. Immigrant
Visa (Consular) Processing
• Adjustment of Status is the process for a foreign
national who has legal entry into the United
States to obtain a green card based on an
approved petition of some type.
▫ Adjudicated by USCIS (6-8 months)
• Consular Processing is the process for a foreign
national who is outside the United States to
obtain an immigrant visa which is the DOS’
equivalent of the green card.
▫ Adjudicated by DOS at the U.S. Consulate
(7-9 months)
Automatic Extension of LPR Status
• Upon receipt of a properly filed I-829, Investor’s
green card status is extended automatically until
the petition is adjudicated
• Travel is allowed
• Employment is allowed
Initial Document Collection
• Indentifying information for primary petitioner
and family members
▫
▫
▫
▫
Birth Certificates
Passports
Marriage/Divorce/Death Certificates
Government issued ID cards or family registries
• Proof of Familial Relationship
▫ Adoption papers
Other Issues of Inadmissibility
• Past Immigration Violations
▫ Visa overstays
▫ Fraud
▫ Misrepresentations
• Criminal Issues
▫ Arrests and convictions
• Affiliations to certain groups
▫ Communist Party membership
EB5 Case Processing Times
• Form I-526
▫ Five Months – Target
▫ Five Months – Current
▫ Eight Months – Reality (based on JIT report)
• Form I-829
▫ Five Months – Target
▫ Six Months – Current
▫ Six Months – Reality (based on JIT report)
A Full Service Immigration Law Firm
10971 Garden Grove Boulevard, Suite D
Garden Grove, CA 92843
800-997-7905 | [email protected]
www.palmer-tran.com