EB-5: OUTSOURCING AN INVESTMENT THROUGH A REGIONAL CENTER

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1 March 2015 EB-5: OUTSOURCING AN INVESTMENT THROUGH A REGIONAL CENTER Chiranjaya Nanayakkara Attorney The EB-5 immigrant visa program grants Lawful Permanent Residency in the United States (a Green Card) for investors who invest $1,000, in a new commercial enterprise (NCE) in the United States which will facilitate U.S. economic growth by creating at least ten full-time jobs. However, if the enterprise benefiting from the investment is in an Employment Targeted Area or Rural Area, the capital investment in the NCE need only be $500, One of the main conditions of this program is that investor must be able to create ten new full-time jobs for U.S. Citizens or Permanent Residents within two years of the date the investor is granted conditional residency (a Conditional Green Card). At the end of the two years, if the NCE creates ten jobs, the conditions on that green card are lifted, and the investor (and his or her family) becomes a permanent resident. This is normally an arduous process which requires day-to-day management of the NCE. Moreover, immigration laws regarding such investments are very complex; therefore, it is important that the investment itself and the creation of the ten new jobs meet statutory requirements. However, there is the possibility of outsourcing the process in order to ease the burden on the investor. If the proposition of outsourcing the investment and creation of jobs is appealing, then the prospective investor should explore the option of investing in a NCE affiliated with an EB-5 Regional Center. It is vital to remember that Regional Centers are not USCIS-approved investment projects. They are only investment projects which USCIS has reviewed and approved to receive funds from investors, who can also submit an EB-5 Application to obtain Permanent Residency based on their investment. However, it is up to the investor do their due diligence regarding the NCE and the Regional Center to ensure that the Regional Center and the NCE are bona fide. One of the main advantages of investment in a Regional Center project is that USCIS will permit the Regional Center-affiliated NCE to count indirect and induced jobs in addition to direct jobs towards the job creation requirement. Additionally, investors in a NCE affiliated with a Regional Center need not be engaged in the day-to-day management of the new commercial enterprise. Instead, the investor need only be involved in the decision-making process of the NCE. Therefore, the investor does not need to live close to the investment project. Moreover, the investor can engage in any other business or work for a U.S. employer thanks to the new Green Card obtained through investment in the Regional Centeraffiliated NCE.

2 TABLE OF CONTENTS EB-5: Outsourcing an Investment Through a Regional Center COVER Alphabet Soup 2 Gathering Documentation: FOIA Requests 3 Adjustment of Status: Avoiding Bars to Re-Entry 4 In the News 5 One Step Ahead 6 ALPHABET SOUP When immigrating from abroad to the United States, there are certain steps in the process which are handled through U.S. Consulates and Embassies. NVC: National Visa Center When USCIS approves an immigrant petition, it is sent to the NVC to begin pre-processing, which involves collection of visa application fees and supporting documentation, which the NVC then forwards to the appropriate consulate or embassy. CP: Consular Processing When a prospective immigrant has had their petition approved and has an immediately available immigrant visa number, they may then begin CP through a U.S. Consulate to obtain their immigrant visa so they may be admitted to the U.S. as a permanent resident. CEAC: Consular Electronic Application Center A website run by the DOS, the CEAC allows immigrants to submit their visa application form online, as well as pay certain fees associated with CP. The CEAC also permits electronic submission of applications for certain nonimmigrant visas.

3 GATHERING DOCUMENTATION: FOIA REQUESTS Angela Anthony Legal Assistant Often, an applicant for immigration benefits or the respondent in an immigration case may lack documentation necessary to effectively pursue their claims. However, many of these needed documents may already be in the hands of the governmental agencies with which the individual has interacted throughout their process. A valuable tool for procurement of copies of such documents at minimal cost is the submission of a FOIA request to those agencies. FOIA refers to the Freedom of Information and Privacy Act, which affords individuals the right to request access to the records of an agency of the federal government (with certain exceptions or exclusions for national security and other purposes). The relevant agencies for immigration purposes include agencies such as USCIS, CBP, ICE, and EOIR. There is no required format for a FOIA request; however, each agency does have particular forms for submitting such a request, and using the correct forms can help speed up responses. Furthermore, many agencies now provide online tools for submitting FOIA requests as well. There is no fee for submitting FOIA requests, but costs may be assessed later for administrative purposes such as copying of records. However, the main drawback of relying on a FOIA request to procure documentation is the fact that responses often take months, and may sometimes even take years. A FOIA request to USCIS should be submitted to the National Records Center (NRC), which maintains records for USCIS. NRC FOIA requests may be submitted by mail or via . Generally, the forms which should be submitted by your legal team are a Form G-28 and a Form G-639, and at times a Form DOJ-361 as well. Processing times can vary a great deal, and while simple requests may take only a few months, more complex requests may take up to a year. CBP has various locations for FOIA submission based on the type of records sought. In addition, CBP also accepts submissions via their online system. The relevant forms are also the Form G-28, the Form G-639, and the Form DOJ-361. Processing times for CPB are usually a bit longer, the normal range being around months for a response. ICE handles immigration records compiled for law enforcement purposes. Submissions may be made via mail or . Again, the relevant forms are the Form G-28, the Form G-639, and the Form DOJ-361. While processing times vary, ICE FOIA requests generally may take over a year for completion. EOIR FOIA requests are made to procure records from immigration court proceedings. Submissions may be made via mail or , and require Form DOJ-361 and Form G-639. These FOIA requests are often processed relatively quickly, taking an average of 2-3 months. When adequate information is not available for a request to the above agencies or there is difficulty in establishing the identity of the applicant, it may be advisable to first submit a FOIA to the Office of Biometric Identity Management (OBIM). OBIM conducts searches of records by fingerprint and A-number, and provides a US-Visit report regarding the applicant. The relative forms are the Form G-28 and the Form G-639, in addition to which a fingerprint/biometric card should be provided. While OBIM has experienced wait times of up to 8 months, the recent addition of staff has begun to eliminate the backlog.

4 ADJUSTMENT OF STATUS: AVOIDING BARS TO RE-ENTRY Varsha Shirhatti Legal Clerk Many people who are married to U.S. citizens or have lawful permanent resident (LPR) relatives may petition to qualify for green cards but can face certain major barriers to the process. Among these are three- and ten-year bars to reentry, provisions of the law which prohibit applicants from returning to the United States if they were previously here illegally. Section 212(a)(9) of the Immigration and Nationality Act imposes re-entry bars on immigrants who are present in the United States for a period of time without any lawful status, leave the United States, but then wish to re-enter the country lawfully. A three-year bar to readmission applies if an immigrant enters the country without inspection, or if he or she overstays their valid period of admission by more than 180 days but by less than one year. A ten-year bar applies when the immigrant applicant stays in the country illegally for a period of more than one year. If the applicant for a family-based Green Card is the spouse, parent, or child (under the age of 21) of a U.S. citizen categorized as an immediate relative of a U.S. citizen and if the applicant entered the United States with a valid visa, the applicant may be eligible to adjust status while in the United States, without having to leave the country. However, all other people applying through the familybased system must go abroad and obtain a visa at a foreign U.S. consulate in order to adjust status, a procedure known as consular processing. Waivers of the three- and ten-year bars are available, but only where extreme hardship to an applicant s U.S. citizen or LPR spouse or parent can be established. Hardship to solely the immigrant applicant is not considered a factor, and neither is hardship to an immigrant applicant s U.S. citizen children. Whereas formerly immigrant applicants had to leave the country to apply for a waiver at a consulate abroad and await the results in uncertainty, the current system in place tries to alleviate the ambiguity of the situation. Now, individuals may apply for a waiver while still stateside, wait for the process to be completed, and upon approval leave the United States with confidence and in certainty of their return. They may then obtain their immigrant visa at a consulate abroad and re-enter the United States freely. Due to the limitations on eligibility for waivers, it may sometimes be preferable for a nonimmigrant who has overstayed their visa to exit the United States prior to the date the threeor ten-year bar will be implemented rather than to take the risk that the waiver application may be denied. To explore how you may benefit from the current waiver program, please contact an immigration attorney. WNRG NOW OFFERS FREE IN-PERSON INITIAL CONSULTATIONS EVERY THURSDAY AT OUR HOUSTON OFFICE PLEASE CALL (281) TO REQUEST AN APPOINTMENT

5 IN THE NEWS Hearing on Federal Application for Stay on Injunction Blocking Executive Action set for April 2015 A hearing has been set for April 17, 2015, in the Fifth U.S. Circuit Court of Appeals in New Orleans regarding the emergency motion by the Justice Department to lift the preliminary injunction issued by the U.S. District Court of for the Southern District of Texas halting implementation of President Obama s Executive actions on expanded DACA/DAPA. The hearing was quickly scheduled as part of request granted to expedite the appeal regarding the injunction. Initially, the Justice Department had requested that the District Court lift the injunction while the case was appealed, but the request was put on hold due to allegations that federal prosecutors had misled the judge regarding the issuance of three-year reprieves from deportation while the judge was deciding on the injunction. U.S. District Judge Andrew Hanen may issue sanctions against the Justice Department if he finds the U.S. government had begun implementation of expanded DACA while the case was ongoing. Rate of Denials for L-1B Petitions by USCIS at an All-Time High Despite No Recent Changes in Adjudication Standard An L-1B visa allows an employer to transfer an employee with specialized knowledge into the United States, as long as the employee has worked at least one year abroad for the employer and has special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company. In Fiscal Year 2014, the denial rate of L-1B petitions by USCIS had risen to the rate of 35 percent, with employees of Indian origin having made up 56 percent of those denials in the last three fiscal years. Furthermore, renewal petitions for L-1B employees have been denied at higher rates than initial applications. In addition to this, Requests for Evidence, which extend and delay the petition process, have been issued at correspondingly high rates, with Indian petitions again receiving the highest amount of requests. Employers have found the recent standards for L-1B approval to be relatively arbitrary, and these issues in addition to the delays and additional employer compliance costs involved are discouraging international employers from transferring employees into the United States via the L-1B visa. However, on March 24, 2015, USCIS issued a policy memorandum in order to provide further adjudication guidance on the L-1B program, which will hopefully help to clarify and resolve some of these issues. BALCA Upholds Denial of Application for Permanent Employment Certification Due to Inadvertent Employer Failure to File a Complete Recruitment Report with Audit Response The Board of Alien Labor Certification Appeals (BALCA) upheld the denial of ETA Form 9089, Application for Permanent Employer Certification, where an employer response to an audit notification which requested the recruitment report failed accidentally to include the entire report, the first page being omitted. In a motion for reconsideration, the employer attached the first page of the recruitment report, and asked that the Certifying Officer (CO) excuse the oversight, since the audit response had included evidence which documented the efforts detailed on the missing recruitment report page. However, the CO refused to consider the missing page, stating the employer was prohibited from providing such evidence with the request for reconsideration under 20 CFR (g)(2)(i), and reasserted his denial of certification, which was upheld by BALCA.

6 ONE STEP AHEAD When opening a process with your immigration law firm, try to have copies of identification documents of the client immediately available. Whether family members, personal representatives, or the clients themselves are opening a process, it is best to provide copies of identification documents such as a passport, driver s license, or other photographic identification of the relevant parties to the process to the firm. This will not only clarify the actual applicant or petitioner in a process for the legal team, but will also ensure that names are entered completely and accurately into the firm s records, especially when an individual does not tend to use their full legal name when interacting with others. Furthermore, it will usually provide basic information that is generally needed in most processes, such as date of birth and country of origin. Tune in to the attorneys of WNRG as they discuss important immigration law issues and updates: HOUSTON MASALA RADIO SHOW AM 1320 Every Wednesday 5:05 PM to 5:15 PM CST ANDHRA MIRCHI AM 1050 Second Saturday of Every Month 1:00 PM to 1:30 PM CST TAMIL MIRCHI AM 1050 Third Saturday of Every Month 5:30 PM to 6:00 PM CST SHOBA JOSHI AM 1320 First and Third Saturday of Every Month 2:30 PM to 3:00 PM CST CONTACT US: HOUSTON: Address: 56 Sugar Creek Center Blvd. Suite #100 Sugar Land, TX Phone: (281) Toll-Free: (888) Fax: (281) SAN ANTONIO: BY APPOINTMENT ONLY Address: 8000 IH 10 West Suite 600 San Antonio, TX Phone: (210) ATLANTA: BY APPOINTMENT ONLY Editor s Note: This newsletter is intended merely to inform, and not as a substitute for legal advice from your attorney on any specific matters. If you have a legal problem, please consult your attorney. ~ Angela Anthony Legal Assistant Address: Midtown Proscenium 1170 Peachtree Street NE Suite #1200 Atlanta, GA Phone: (404) Fax: (404) immigration@grwpc.com FOLLOW US ON To submit questions or comments regarding this newsletter, please send an with the subject line Newsletter to aanthony@grwpc.com.