PIERCE'S IMMIGRATION LAW E-NEWSLETTER is free. It is published by the Law Offices of Curtis Pierce, Certified Specialist, Immigration & Nationality law, The State Bar of California Board of Legal Specialization. 523 West Sixth St., Suite 348, Los Angeles, CA 90014. (213) 327-0044.
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CURTIS PIERCE NAMED CALIFORNIA SUPER LAWYER
FOR THIRD CONSECUTIVE YEAR.
Curtis Pierce was honored by Super Lawyers Magazine as one of the top 5% of attorneys in California. Super Lawyers are chosen by their peers and through independent research. Mr. Pierce has been chosen for the years 2008, 2007, and 2006. MMIGRATION ITEMS OF INTEREST
CURTIS PIERCE AND MATTHEW HALL'S ARTICLE "REPORTING OUR COLLEAGUES FOR DISCIPLINE TO SAVE OUR CLIENTS FROM DEPORTATION: AN 'INEFFECTIVE' SYSTEM" APPEARED IN APRIL/MARCH 2008 ISSUE OF AILA'S IMMIGRATION LAW TODAY.
Curtis Pierce and Matthew Hall take on the timely issue of Lozada in an article published in the April/March 2008 issue of AILA's Immigration Law Today. This article is a must read for the immigration practitioner and will be of interest to the lay reader. The faulty procedure that is the focus of this article is the requirement for attorneys to report colleagues when the client has been the victim of "ineffective assistance" of counsel.
In the convincing first paragraph of the article, Pierce and Hall liken immigration attorneys to good soldiers who do not question their orders, even when they find them distasteful and ineffective. When doing a motion to reopen for an alien who has been the victim of "ineffective assistance of counsel", the new attorney is required by Lozada to file a complaint against the "ineffective attorney". Is there no other way to undo the damage? Is there no other way to assist the client? Many believe that the complaint requirement is an unnecessarily harsh measure.
Pierce and Hall speak out about this system that falls far short of being useful, efficient, or successful. They call for the eradication of the requirement of reporting the "ineffective" lawyer and call for a new approach to this problem.
The arguments of this article will resonate among practitioners. AILA presented an edited version. In order to grasp the force of the argument, read the article in its entirety on Curtis Pierce's website: http://www.cpvisa.com/article_5Lozada.html
EB-5 INVESTOR VISAS: IMMIGRATION THROUGH INVESTMENT
PART II
Last month, we introduced the topic of EB-5 Investor Visas. The EB-5 offers important flexibility for alien investors with $1,000,000 or, in some cases, $500,000 to invest in a new business in the U.S. The intent of the EB-5 program is to promote the immigration of investors with the condition that their investments would create employment opportunities for U.S. workers or save jobs in a "troubled business".
Under section 203(b)(5) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1153(b)(5), 10,000 immigrant visas per year are available to qualified individuals seeking permanent resident status on the basis of their engagement in a new commercial enterprise. Of the 10,000 investor visas (i.e., EB-5 visas) available annually, 5,000 are set aside for those who apply under a pilot program involving a United States Citizen and Immigration Service (USCIS) designated “Regional Center”.
What are the Benefits of an EB-5?
If you are an active investor in a U.S. enterprise in which you are investing at least $1 million, or $500,000 in certain targeted areas, and the enterprise creates at least ten full-time jobs, then you may be able to obtain U.S. Permanent Residency under the EB-5 category. If an EB-5 application is approved, the alien becomes a conditional permanent resident for two years. In effect, through his investment, the alien and his family can secure a temporary green card. After two years, the person and his family file to remove the condition. If he has satisfied the conditions, then he and his family will receive a permanent Green Card.
Why should I consider an EB-5 Investor Visa now?
If you are a foreign investor, consider the weak American dollar relative to your currency. This may be the time for you to consider immigration through investment.
Who qualifies for immigration investor status?
To qualify as an immigrant investor, several conditions must be met.
1. The investor must be actively in the process of investing at least $1 million in a new commercial enterprise or a troubled business.
2. Capital must be placed at risk for the purpose on generating a return on the investment.
3. The capital invested must be obtained through legal means.
4. The commercial enterprise must create at least ten new full-time jobs.
Can the investor, his wife or children count in the ten employee minimum for new job creation?
No. The investor, his wife, and children do not count in the ten employee minimum for new job creation? Ten U.S. citizens, lawful permanent residents, or other immigrants legally authorized to work in the U.S. are included in the ten employee minimum. The ten jobs must be full time jobs, meaning a minimum of 35 working hours per week.
Do independent contractors count in the ten employee minimum for new job creation?
No, independent contractors do not count in the ten employee minimum for new job creation.
Can I show $1 million in a bank account and qualify for an EB-5?
Many clients ask this question. The answer is absolutely not. One cannot simply show $1 million in a bank account and qualify for an EB-5 visa. The capital must be put at risk. The alien must show that his is taking personal financial risks in making the investment.
Can a loan I make to my company qualify as an investment of capital for the EB-5?
No. An investment is a contribution of capital by the alien investor. Further, that capital must be put at risk. Capital includes the following:
Cash
Cash equivalents such as Certificates of Deposit, treasury bonds, or other instruments readily convertible to cash.
Equipment
Inventory
Indebtedness secured by assets owned by the alien. Assets of the new commercial enterprise may not be used to secure the indebtedness.
How do I verify that my contribution of capital was obtained through legal means?
Consider the example of the alien investor who pools capital from several legal sources. The investor may contribute personal savings and the proceeds from the sale of his property. Supporting documentary evidence would include bank account records and the contract from the sale of the property. Gifts and inheritances may also be included in the contribution of capital. Foreign tax returns would also be required for supporting evidence.
Can the alien investor take out a loan secured by the assets of the new commercial enterprise?
No. Indebtedness that is secured by the assets of the new commercial enterprise is precluded from the definition of capital according to the rule of the Administrative Appeals Office (AAO). The petitioner must show an investment of his personal capital.
How can load proceeds be considered capital?
For loan proceeds to be considered capital, the investor must be personally and primarily liable for the indebtedness. The indebtedness must be secured by assets owned by the alien investor. None of the business assets may be used as security.
What is the definition of a "troubled business"?
To obtain an EB-5 visa, the alien investor must invest $1,000,000 in a new commercial enterprise or a troubled business. A troubled business is one that has been in existence for at least two years and has incurred a net loss during a 12 or 24 month period before the priority date of the alien entrepreneur's Form I-526 (Immigrant Petition by Alien Entrepreneur). The loss must be at least equal to 20% of the troubled businesses' net worth prior to the loss.
What is the requirement for creating new jobs if the investor purchases a "troubled business"?
The alien investor must demonstrate that the number of existing employees will be maintained for at least two years at the pre-investment level. An advantage exists in that the investor does not have to create ten new jobs. Instead, the business must maintain the existing number of employees prior to the investment. It is important to note that the troubled business must stay in business for two years after the investment. If the business fails before the two year time limit, the investor might lose his conditional residency status.
How does one document that a "troubled business" has successfully maintained the number of existing employees?
I-9 forms, tax records or payroll documents, and a comprehensive business plan are necessary to document that a troubled business has successfully maintained the number of existing employees after the investment. The actual individuals who are employed may change, but the number of jobs must be constant.
What evidence is required for an application for the EB-5 investor investing in a new enterprise? The EB-5 investor should provide evidence of creation of a new enterprise, or investment in an existing enterprise including, but not limited to, the
following:
1. Articles of incorporation, partnership agreements, organizational
documents.
2. Evidence of lease agreements for the qualifying enterprise.
3. State business licenses, if applicable.
4. Evidence that the required amount of capital has been transferred and is
at risk: Bank statements showing deposits in US account of enterprise; evidence of purchase of assets for the enterprise to use; evidence of property transferred from overseas; evidence of funds invested in the enterprise in exchange for stock (except for stock redeemable at holder’s
request) or evidence of debts secured by investor’s personal assets and for which the investor s personally and primarily liable.
5. Evidence that investment has resulted in the substantial increase of net
worth.
6. Documentation of sources of capital: Foreign business registration
records; personal and business tax returns or tax returns of any kind filed anywhere in the world within the previous five years; documents identifying any other source of money; or certified copies of all pending governmental civil and criminal actions and proceedings or any private matter involving money judgments against the investor in the past 15 years.
7. Documentation of intent to invest or actual commitment to invest capital
8. Documentation of assets purchased or transferred from abroad for the
qualifying enterprise
9. Documentation that the investment benefits the U.S. economy: Letters from
local or state government officials or agencies, chambers of commerce or regional economic development agencies describing the specific benefits to the local or state or national economy.
Regional Center Program and Its Benefits: A Quicker Path to a Green Card
The EB-5 category is an important option for foreign investors to consider because of the unique advantages it affords. These include the flexibility to live anywhere in the U.S., not just in the geographic area of the investment and the option to be a limited partner not required to be involved in the daily management of the new commercial enterprise. The required investment is $500,000 or more in USCIS designated Regional Centers. Further, the EB-5 category provides a quicker path to obtaining a green card.
This is an option for foreign investors who are looking for an investment that does not require the daily responsibilities of running a company.
What is a regional center and what makes the Regional Center Program unique?
A regional center is an entity, organization or agency that has been approved as such by the USCIS;
Focuses on a specific geographic area within the United States; and,
Seeks to promote economic growth through increased export sales, improved regional productivity, creation of new jobs, and increased domestic capital investment.
The designated regional center is located in an area with high unemployment and is one that the USCIS has determined would benefit by indirect employment provided by the investor’s project.
Foreign investors in a designated regional center must do the following:
Demonstrate that a "qualified investment" is being made in a new commercial enterprise located within an approved Regional Center; and,
Show that 10 or more jobs are actually created either directly or indirectly by the new commercial enterprise through revenues generated from increased exports, improved regional productivity, job creation, or increased domestic capital investment resulting from the pilot program.
What Does It Mean to Indirectly Create New Jobs?
If you invest in an USCIS approved regional center, you do not need to directly create 10 full-time jobs. The requirement of creating at least 10 new jobs is met by a showing that as a result of the new enterprise, such jobs will be created directly or indirectly through revenues generated from job creation. If effect, if you invest in a USCIS approved regional center, only a creation of a few jobs may meet the 10 job requirement because an increase in a few jobs also leads to indirect job gains, the sum of which equals at least 10. Indirect job creation benefits the regional economy.
How many USCIS approved regional centers are there in the U.S.?
Currently, there are more than 20 USCIS approved regional centers in the U.S. If the regional center is also in “targeted employment area” then the investment may be only $500,000. “Targeted employment area” is defined as a rural area or an area that has an unemployment rate at least 150% of the national average. Each state notifies the USCIS which areas constitute targeted employment areas for that state. However, you may also submit your own evidence that the area in which you will invest is a targeted employment area, evenif the state has not so designated it.
Summary If you qualify for EB-5 status, it can be an advantageous category for obtaining U.S. Permanent Residency because you can self-petition, the priority date is usually current, and you can obtain Conditional Resident status upon filing the EB-5 petition and making the initial showing. This often permits one to avoid the necessity of obtaining some type of temporary status while waiting for the Permanent Residency Status.
The major disadvantages include the amount of money which must be put at risk, and the number of jobs which must be created. It is important to note that, as with any investment, the amount the alien invests, can be lost. Also, the new business venture must create 10 jobs. If the business fails to accomplish that, Permanent Residency Status will not be granted.
Permanent resident status based on EB-5 eligibility is available to investors, either alone or coming with their spouse and unmarried children. Eligible foreign nationals are those who have invested -- or are actively in the process of investing -- the required amount of capital into a new commercial enterprise that they have established. They must further demonstrate that this investment will benefit the United States economy and create the requisite number of full-time jobs for qualified persons within the United States.
Upon filing EB-5 and making the initial showing, the foreign national first obtains Conditional Resident status, and the only at the end of the process does the foreign national obtain Permanent Resident status, if the petition is successful.
AN AMERICAN IMMIGRATION LAWYER IN PARIS
On May 27, 2008, Immigration Attorney Curtis Pierce is scheduled to present a seminar on investor visas (E-2, EB-5) as well as visas for intracompany transferees (L-1) at the American Business School Paris, located at 12, rue Alexandre Parodi 75010 PARIS. The seminar will be conducted in French and begin at 7:00 P.M. All those wishing to attend are requested to RSVP by emailing Mr. Pierce at curtis.pierce@cpvisa.com.
IMMIGRATION NEWS & INFORMATION
F-1 STUDENTS MAY REQUEST CHANGE OF STATUS IN LIEU OF CONSULAR NOTIFICATION
U.S. Citizenship and Immigration Services (USCIS) announced that it would allow F-1 students who are the beneficiaries of selected H-1B petitions for fiscal year (FY) 2009 to request a change of status in lieu of consular notification.
This short-term measure follows an April 8, 2008 interim final rule that, among other actions, automatically extends the F-1 status of qualifying students who are the beneficiaries of approved H-1B petitions to cover the gap between the expiration of a student’s F-1 status and the H-1B employment start date of October 1. To obtain the automatic extension, a student must be the beneficiary of an H-1B petition filed for the next fiscal year (with an October 1 employment start date) and have requested a change of status. For F-1 student beneficiaries of petitions that USCIS subsequently rejects, denies, or revokes, or for those who violate their status, the automatic extension terminates at that time.
Since the rule was published after the filing period had closed for new FY 2009 H-1B petitions, many petitioners of F-1 students did not include a request for a change of status with the H-1B petition. Instead, petitioners requested consular notification based on the assumption that these students would have been required to leave the United States to obtain an H-1B visa at a consular office abroad.
USCIS has determined that it will allow petitioners of F-1 students whose H-1B petitions were randomly selected to receive an H-1B visa number for FY 2009 following the closure of the filing period, to now request a change of status on behalf of qualified beneficiaries, if such requests are received within 30 days of the issuance of the receipt notice.
To request a change of status in lieu of consular notification, petitioners (or authorized representatives) should send an e-mail with the request to the USCIS service center where their petition is pending within 30 days of the issuance of the receipt notice. Special e-mail addresses for each service center have been established specifically for this purpose. These addresses are listed below and are posted on USCIS’ website. Petitioners should e-mail their requests for change of status in lieu of consular notification upon receipt of the notice so the agency has the request before completing H-1B petition adjudication. The requests should include the receipt number and both the petitioner’s and beneficiary’s name, date of birth, I-94 (Arrival/Departure Record) number, and Student and Exchange Visitor Information System (SEVIS) number. Please do not contact the service center about requesting a change of status until after receiving the receipt notice.
E-mail addresses for requesting change of status are:
On April 18, 2007, U.S. Department of Homeland Security (DHS) Secretary Michael Chertoff signed a Visa Waiver Program (VWP) Memorandum of Understanding (MOU) with Korean Minister of Foreign Affairs and Trade Yu Myung-hwan. The security enhancements outlined in the agreement puts Korea on the path toward visa-free travel to the U.S., and potential designation as a VWP member as early as later this year.
The U.S. Congress authorized DHS in August 2007 to reform the VWP and strengthen the security arrangements required of existing participant countries, as well as to expand the conditions for aspiring countries to join the program.
Among the security enhancements required, DHS will establish an electronic system of travel authorization for air passengers. VWP travelers will be asked to provide some basic information online, which will generate an authorization number for travel. DHS will announce complete details on how the authorization systems will work, and when they will begin, later this year. VWP partners also must ensure reporting of lost and stolen passports to avoid fraudulent use and enhance security measures for airports that originate flights to the U.S., to include permitting air marshals on certain flights.
The VWP has been authorized by U.S. law for over 20 years, with 27 current members from Asia and Europe.
The U.S. has signed enhanced VWP agreements with the Czech Republic, Estonia, Latvia, Slovakia, Hungary, Lithuania and Malta in recent weeks. Each country committed to meeting the new requirements of the program, to include an electronic system of travel authorization.
PROCESSING TIMES & CASE STATUS
Processing Times
· To view processing times and your case status, click one of the links below to connect to the correct U.S. Citizenship and Immigration Services information page.
It is published by the Law Offices of Curtis Pierce, 213-327-0044.
Disclaimer: The information contained in this newsletter is analysis and commentary of a general nature. Nothing in this newsletter applies to a specific case nor does it constitute legal advice.
Schedule appointment: For legal advice on your case, please schedule an appointment with Curtis Pierce, Certified Specialist, Immigration & Nationality Law, The State Bar of California Board of Legal Specialization.
“The only title in our democracy superior to that of President (is) the title of citizen”.
Former Supreme Court Justice Louis Brandeis. (In the case Ng Fung Ho v. White, 259 U.S. 276, 284 (1922), Justice Brandeis wrote that deportation can deprive an individual of "life, or of all that makes life worth living.")
In the words of President John F. Kennedy, the United States is a "nation of immigrants."
IMMIGRATION LAW E-NEWSLETTER
curtis f.pierce
Attorney At Law
certified specialist, immigration & nationality law
the state bar of california board of legal specialization
TEL (213) 327-0044 FAX (213) 327-0066
