DC Lawyer and EB-5 Visa Open Doors to USA Investment and Green Card
Living and investing in the United States is the dream of many people, young and old. For some foreign families willing to settle in the USA, the EB-5 Investor visa program may be the ideal route to permanent residency, as well as an opportunity to take advantage of a dynamic economy and a higher return on investment.
Created in 1993, EB-5 (Employment Based 5th Category) has had a varied success attracting applicants. Even though the rewards were huge (access to US education, growing economy, standard of living, citizenship…), changing rules, lack of flexibility and investment risks often kept candidates at bay.
An in-depth reorganization in 2003 and the recently published EB-5 Adjudications Policy proposals are now changing the game. This is the time to look at EB-5 again.
What can foreign investors expect from EB-5 today?
The purpose of the new EB-5 program rules, as proposed by the U.S. Citizenship & Immigration Services (USCIS) is to protect the integrity of the program, and to make sure that its purpose is fulfilled. This definition rests on three elements:
- The immigrant’s investment of capital
- In a new commercial enterprise
- That creates jobs.
The proposed new rules go on to define, in much greater detail than ever before, every single part of the above elements. Important aspects of the program, like Regional Centers, Target Employment Areas, the management role of the investor, the traceability of the invested capital, and procedural issues are all clarified and outlined in depth.
Back in 1993 the first intention of the USCIS was to attract investors who would come up with a minimum capital of $1 million, create a new company, hire at least 10 full-time employees and manage the enterprise themselves. This appeared to be unrealistic and soon led to the creation of Regional Centers (RC), approved funds that manage job-creating businesses.
With RCs, foreign investors avoided the high startup risks and costs of creating a new company from scratch and the investment limit was lowered to $500,000 in some areas. The requirement of creating 10 additional jobs can be satisfied by showing that indirect jobs are generated by the new venture. Furthermore, foreign investors may pool capital within the RC, which is likely to reduce management responsibilities, while simultaneously increasing the job creation potential. This frees the investor from the obligation to live close to the created company and to be directly involved in its management.
Investing in the right Regional Center. There are close to a hundred approved RCs and, if they all want your money, they do not always live up to your expectations. Some, like the Washington DC Regional Center, are involved in ventures that are mostly immune from an economic downturn, because of the overwhelming presence of government-related businesses and institutions in DC. The selection of the right investment vehicle for your capital is a specialist’s work, one in which our experience and integrity is invaluable.
Criminalization of Illegal Employment even for Small Employers
Anyone who has employment responsibilities should be aware that, based on recent developments in immigration enforcement, hiring unauthorized individuals is now being criminally prosecuted by the Immigration and Customs Enforcement agency, leading to incarceration and confiscation of properties rather than just civil fines. The trend from civil fines to criminalization began a few years ago with high profile investigations of large employers of . (See my article of June 2007).
A recent prosecution makes clear that the Bush administration intended to come equally hard against small employers, as we predicted in 2007. The Immigration and Customs Enforcement agency recently announced that a small restaurant owner has been incarcerated for eight months, all of his business properties have been confiscated, and he will face deportation upon release for having hired unauthorized individuals. (See ICE press release of January 7, 2009). Furthermore, the senate testimony of Janet Napolitano, Obama’s Homeland Security Secretary nominee, suggests that the trend is likely to continue and even accelerate.
It is therefore more important than ever to verify the employment eligibility of all individuals and to maintain good records of their I-9 forms and supporting documentation.
Please let me know if you have any questions or if I could be of further assistance to you or others for any immigration matters.
Pierre Choné (January 2009)
No More Privacy in Your Laptops & PDA
Be Aware: Your laptop and pda may be searched when you arrive in the United States
A recent decision of the federal court of appeals in California () held that U.S. border officials may search information that is electronically stored on devices such as or telephones. This new standard applies regardless of one’s immigration status and arguably applies equally to U.S. citizens. Although this case arose during a secondary inspection (after the traveler had passed the first immigration inspection and proceeded to leave the airport after picking up his luggage), it is expected that immigration officers will find authority in this new decision to search at their discretion any device that stores information in electronic form.
This new development might be particularly disturbing for those traveling under the visa waiver program who have the burden to show that they are not coming to the United States to work and do not intend to remain more three months. Any minor information found on their laptops or phones could be interpreted by the immigration officers as evidence that they have not met their burden and, therefore, cannot enter the United States. These travelers are customarily and immediately sent back to their point of departure by the next flight. At worst, they could be charged with misrepresentation which could bar them from returning to the United States for many years. Obviously, the search could also lead to criminal charges. (Arnold was ultimately accused of transporting and possessing child pornography).