EB-5 Immigrant Investor Program – Investor Must be Actively Engaged in the Management of the New Commercial Enterprise

November 2nd, 2013 No comments
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Under the federal regulations governing the EB-5 immigrant investor program, the immigrant investor must be actively engaged in the management of the new commercial enterprise, either through the exercise of day-to-day managerial responsibility or policy formation. The immigrant investor cannot maintain a purely passive role under 8 CFR 204.6(j)(5).

The immigrant investor should provide USCIS with a statement explaining the position the investor will hold. This should include the position title and a detailed description of the position’s duties. Alternatively, the EB-5 applicant can be a corporate officer or member of the board of directors.

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If the new commercial investment is a partnership, either limited or general, the immigrant investor should provide evidence that s/he will be engaged in either direct management or policy making activities.

If the applicant is a limited partner, the limited partnership agreement should grant the immigrant investor with certain rights, powers, and duties normally granted to limited partners under the Uniform Limited Partnership Act. In such cases, the immigrant investor will be considered sufficiently engaged in the management of the new commercial enterprise.

Active management is not as much of an issue with EB-5 Regional Center cases as the investor’s capital is pooled with other investors for larger projects. Each investor has limited input on how the capital is used and the project is run. The EB-5 program is a complicated area of immigration law and includes many detailed requirements.

If you are considering the EB-5 program, contact The Nunez Firm to schedule a consultation in our Irvine office. Managing attorney Jay Nunez will personally meet with you to help you better understand the process and whether the EB-5 program is right for you.

For more information on proving source of funds for EB-5 investors . . .

Clarifying the Immigration Marriage Fraud Amendments Act of 1986 and INA 216 Regarding Conditional Residents and Form I-751

October 31st, 2013 No comments
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The Immigration Marriage Fraud Amendments Act of 1986 was enacted because of Congress’s growing concern over aliens seeking permanent residence in the US on the basis of marriage to a US citizen or permanent resident. Congress heard several accounts from US citizens who had been victimized by ex-spouses who married for the sole purpose of obtaining a marriage-based green card. Similarly, government adjudicators offered accounts of couples (a US citizen and foreign born spouse) acting in concert to obtain permanent residency for the alien spouse either as a friendly agreement or as a financial arrangement. (There was also a movie starring Gerard Depardieu and Andie MacDowell.) In such cases, the couple would dissolve the marriage shortly after the alien’s marriage based green card was approved.

In response to these concerns, Congress passed the Immigration Marriage Fraud Amendments Act of 1986 adding INA 216, which created a conditional residence requirement for aliens who acquire permanent residency based on new marriages. Under INA 216 conditional residents  must petition USCIS (then called INS) approximately two years after obtaining the green card. The alien spouse and US citizen must file and I-751 and provide evidence that the couple was still married and conducting themselves as would be expected of a married couple. Section 216 also included a waiver provision as Congress acknowledged that in some circumstances it would be inappropriate to terminate the alien’s residency and deport the alien merely because the marriage did not last. (For more on the I-751 process . . .)

Wedding rings and money

INA 216′s conditional residency requirements apply to:

  • Any alien who, based upon a marriage to either a US citizen or lawful permanent resident obtains permanent residency within two years of such marriage, and
  • Any child of such alien who also obtains permanent residency through his or her parent’s marriage within two years of the marriage.

NOTE: The crucial date when calculating the two years of marriage is at the time of adjustment or admission. For example, if the alien files the I-485 when the alien has been married for one year and six months, but the adjustment interview (and approval) does not occur until after the second anniversary, the alien is not subject to INA 216. Likewise, if the alien consular processes and the visa interview occurs when the marriage is one year and eleven months old, but the alien is not admitted into the United States until after the second anniversary, the alien is not subject to the conditional residence requirements of INA 216.

INA 216 does not apply to the following:

  • a special immigrant classification
  • a refugee or asylee classification
  • a preference classification other than second preference
  • any other provision of the INA, or any other law, which allows dependents to accompany or follow to join a principal alien

Under the Immigration Marriage Fraud Amendments Act, USCIS is required to notify the alien of his/her duty to file the I-751. USCIS must notify the alien on two separate occasions: first, at the time an alien acquires conditional residence; second, approximately ninety days before the second anniversary of the date on which the alien obtained conditional permanent resident status. USCIS will notify the alien of the I-751 requirement at the last known address. However, failure by USCIS to notify the alien does not relieve the alien of his duty to file the I-751. If the alien fails to file the joint I-751 during the ninety days preceding the expiration of the two year green card, his/her status is automatically terminated.

A conditional permanent resident whose I-751 remains pending for an extended period of time may file the N-400 application to naturalize even if the I-751 has not been adjudicated.

If you are approaching the I-751 filing time, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will help you better understand the process. We have represented countless I-751 clients whether they were filing jointly or based on one of the waiver options such as good faith marriage or victim of domestic abuse.

 

Republican Lobbying Groups Push For Immigration Reform

October 29th, 2013 No comments
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Republicans who back immigration reform are ramping up their push to get the House to bring legislation to the floor, as the issue threatens to potentially create a public divide within the GOP.

The Wall Street Journal reports the group Republicans for Immigration Reform is building up its lobbying efforts in Washington, releasing a web ad last week urging the House to act that has been viewed over 600,000 times, according to the group.

This week, the New York Times reports a coalition of about 600 mostly Republican leaders in business and agriculture will begin an effort to lobby 80 GOP representatives on the issue. Some GOP donors are also reportedly privately withholding their contributions from members of Congress who oppose action of immigration reform.

The issue has the potential to divide GOP lawmakers again after public in-party fighting over the recent budget negotiations.

The New York Times reports that while some House members and House Speaker John Boehner are pushing for the lower chamber of Congress to pass its own immigration legislation before the end of the year; some conservative lawmakers have said they will not act on the issue regardless of pressure.

“I care about the sovereignty of the United States of America and what it stands for, and not an open-door policy,” Rep. Ted Yoho, R-Fla., who is opposing all of the bills the House is currently considering, told the New York Times.

However, both President Obama and Boehner expressed optimism last week that the House could pass immigration legislation.

Proving Extreme Hardship for I-601 and I-601A Unlawful Presence Waivers

October 29th, 2013 No comments
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At the heart of any I-601 or I-601A unlawful presence waiver is the issue of extreme hardship to the qualifying relative of the alien applicant. In order to win approval for an I-601 extreme hardship waiver or I-601A waiver, the attorney must show that it would cause the qualifying relative extreme hardship if the alien is not permitted to live in the United States.

Extreme hardship is a vague term, and the adjudicating officer is given broad discretion on how to interpret extreme hardship. Generally, extreme hardship is defined as greater than the normal hardship the qualifying relative can be expected to experience if the Alien is denied admission. The I-601 or I-601A should always cover two hypothetical scenarios when attempting to satisfy this issue: 1) would the qualifying relative experience extreme hardship if the relative stays in the United States and the alien lives in his/her home country? 2) Would the qualifying relative experience extreme hardship if s/he moves with alien to the home country?

There are many strategies and potential arguments to consider when trying to prove extreme hardship. Each case will involve different facts, but it’s important to consider all possible angles. Here is a sampling of some of the arguments that USCIS or the Department of State might consider persuasive. This list is not exhaustive.

- Qualifying relative (“QR”) has a serious medical condition that makes relocation to the foreign country impossible. This is a very strong argument, and if accompanied by other arguments and presented in a persuasive manner, should result in an approval. We’ve had several waiver cases approved involving a QR with a serious medical condition.

- Child of QR has a serious medical condition which causes extreme hardship to QR if alien is forced to live outside the US. Although the child’s hardship from the medical condition is not directly considered for the I-601 or I-601A waiver, hardship to the child of the QR will always cause hardship to the parent. For example, one of our client’s children was autistic, so we explained that if the alien wife was forced to live abroad, the child would either move to the foreign country and receive inadequate support services or the child would stay in the US and the US citizen husband would not be able to provide adequate supervision because he worked two jobs.

- Qualifying relative takes care of an elderly relative with a serious medical condition. Be sure to document the medical condition and show proof that the QR provides care. Also, explain why other relatives (siblings, etc.) cannot provide care if QR were to move abroad. In one of our cases, we showed that the mother of the QR was very old and had several medical problems. The QR and his alien wife lived a couple blocks away and would care for the mother every day. While the QR went to work, the alien wife would stay with the mother, massaging her feet, preparing food and keeping her company. We provided photos and medical records for the mother.

- Alien’s home country is at war, is politically unstable, or has serious violence. Use country condition reports and US government sources to prove this. Avoid news articles if possible. This is always a worthwhile argument if the alien is from Mexico.

- QR is the primary caregiver for children from a prior relationship. Be prepared to show custody documents or other proof of primary caregiver.

- QR must help support family members financially. For example, one of our clients helped his parents pay their mortgage because they were older and could not work. In another case, our client was putting two college-aged kids through school, and he could not move abroad because the kids would need to drop out of school.

- QR helps support children from a prior relationship but is not the primary caregiver. This argument will receive less attention, but it is still important to point out. Include proof of child support payments and try to get a written statement from the children or other parent of the children attesting to the QR’s involvement in the kids’ lives. In one case, the mother of the QR’s children provided a written statement attesting to the alien’s good relationship with the children and saying that the QR was a good father and provider.

- QR has suffered depression, anxiety or other psychological problems as a result to Alien’s uncertain immigration status. A psych evaluation from a qualified professional is necessary here.

- QR and Alien have children together. There are many rumors that if a couple has kids together, the I-601 or I-601A will be granted. While having children together makes the case stronger, it does not, in and of itself, guarantee approval. Likewise, not having children involved does not guarantee denial.

- The Alien entered the US at a young age through no decision of his/her own. Although this should not have a direct bearing on extreme hardship to the QR, some officers regard this as a relevant consideration. It might be possible to argue that the alien would be just as ill-prepared to live in the foreign country as the QR therefore making the stress of living separately or trying to live abroad for ten years more daunting.

- QR could not find employment in the foreign country. One of our clients was a floor restoration specialist and had his own business. If he moved to the foreign country he would not be able to practice his trade. He wouldn’t know the language and the houses were built differently in that country. His skills would be useless if he moved abroad.

- QR would be a target for violence in the foreign country. In another case, we explained that the QR would stick out in the foreign country because of his race. We included country condition reports that discussed various incidents of individuals like our client being targeted for violence, kidnapping, and robbery. We also included news articles.

- Alien would be a target for violence in the foreign country. In the home country of one of our clients rape was prevalent, and our alien client was previously attacked while she lived there. We included her written testimony, country condition reports and news articles. We explained that the QR would be constantly worried that he could not protect her while he was living in the US and she lived abroad.

- QR and alien (assuming marriage) are without children, but they are trying to start a family and being separated for years to come will make a family impossible. If appropriate provide documentation to show trouble getting pregnant. For example, with one couple that did not have kids, we provided evidence of a prior miscarriage. We argued that the wife was in her early thirties and had already suffered a miscarriage. She was getting older and the couple would either need to move to Mexico and have the child there, or give up on having a family if the wife was forced to live in Mexico for the next ten years.

Keep in mind that officers are given broad discretion on which cases to approve, and the attorney filing the waiver packet has no control over which officer adjudicates the case. Each adjudicator may have their own preferences and guidelines, and the case law supports this by acknowledging that each case is unique. For this reason it’s important to have an immigration attorney experienced with I-601 and I-601A waivers help prepare the case. A good attorney will have prepared many waiver packets and will know which cases have been approved and which have not.

To schedule a consultation with The Nunez Firm, contact us. Managing attorney Jay Nunez will personally meet with you to help you better understand the I-601 and I-601A process and whether your case is viable and worth pursuing.

Invest New Hampshire Regional Center Enters the EB-5 Field

October 28th, 2013 No comments
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Northern New England’s immigrant investment playing field just became more crowded. A new EB-5 regional center, based in Campton, N.H., was approved Monday by U.S. Citizenship and Immigration Services.

The Invest New Hampshire Regional Center aims to raise $10.5 million in $500,000 increments from 21 investors. The money will fund expansions at the Owl’s Nest Resort and Golf Club in the White Mountains, according to USCIS documentation published on its website.

The center’s manager, Kelly Wieser, is the daughter of Owl’s Nest developer and regional center principal Thomas Mullen. A January report in New Hampshire Business Review quoted Mullen as saying the group plans to expand their EB-5 investment portfolio beyond Owl’s Nest. Representatives from Invest New Hampshire could not be reached before publication time for this article.

Invest New Hampshire is the fourth such regional center approved to operate in New Hampshire. The New Hampshire EB-5 Regional Center was created to raise $35 million to turn Ragged Mountain Resort into a four-season destination, much like plans for the EB-5-funded Jay Peak and Burke Mountain expansions in Vermont.

“You’ve heard of the term, imitation is the sincerest form of flattery?” Bill Stenger said. “This applies.”

The Jay Peak co-owner is the public face of a combined $425 million set of EB-5 projects promising thousands of jobs in the Northeast Kingdom. In addition to Jay Peak and Burke Mountain, Stenger and his business partner, Ariel Quiros, are working to bring a Korean biotech firm to Newport and develop a city block and waterfront lot in the town.

For more information on the EB-5 program in general, click here.

If you are considering the EB-5 Investor Visa Program, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you to help you better understand the process and whether the EB-5 program is a viable option for you.

The contents and information provided in this post should in no way be considered an endorsement or recommendation by The Nunez Firm, P.C. in favor of the investment opportunities or regional centers mentioned herein. The contents are strictly for informational purposes. As with any investment, investors considering the EB-5 program should consult a financial advisor and perform the necessary due diligence.

Green Card Approved For Irvine Client Based on Marriage to US Citizen husband

October 27th, 2013 No comments
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One of our Irvine clients was approved for a marriage based green card this week. The couple met in 2005 while they were both working for the same company. They were friends at first as the husband was going through a difficult divorce. Over time the couple’s relationship became more romantic and they started dating. When the divorce finalized in 2011, the husband proposed marriage, and a year later, the couple married.

They initially hired another attorney, but they were unhappy with the pace at which the case was proceeding. They hired The Nunez Firm earlier this year. We collected evidence to prove that the marriage was entered into in good faith including joint auto insurance, utility bills and joint tax returns. The husband’s brothers provided written statements attesting to the bona fides of the marriage as well.

Wedding rings

At the interview, the examining officer raised an important issue – the wife was previously married (almost 20 years ago), and her husband filed for her to receive a marriage based green card. The marriage did not work out and the couple divorced without pursuing the green card further. I explained that the filing of the visa petition on behalf of my client did not make her ineligible to receive a green card through her current marriage. I pointed out that the prior filing was not denied, it was abandoned. And, there was no evidence of marriage fraud in that case. My client and her ex-husband were merely young and rushed into a decision too quickly. The officer agreed, and approved the case on the spot.

The couple was very happy about the outcome. After the interview, I advised them that they would need to file the I-751 application to remove conditions two years from now because their marriage was less than two years old at the time of the approval. For more information on the I-751 process, click here.

If you are married to a US citizen and are considering consular processing or adjustment of status, contact The Nunez Firm. Each case is different and you should consult an experienced immigration attorney to help you devise the best strategy for obtaining a green card through your marriage. Some cases will require an I-601A extreme hardship waiver, and you should know what will be involved before you begin the process.

I-601A Provisional Waiver Approved for Santa Ana Client Based on Extreme Hardship

October 25th, 2013 No comments
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We received an approval notice for an I-601A Unlawful Presence Waiver for one of our Santa Ana clients. Our client is married to a US citizen and has two US citizen children (ages 2 and 4). She entered the US without inspection in the mid-1990s.

Both of the children are healthy. The husband has some medical issues (asthma and high blood pressure). The husband works two jobs and the wife stays home with the kids. In our I-601A packet we explained to USCIS that the husband would experience extreme hardship if the wife were not permitted to live in the United States.

As with any I-601A extreme hardship waiver, we covered to primary questions: 1) Would husband experience extreme hardship if wife lived in Mexico and husband stayed in the US? 2) Would husband experience extreme hardship if wife and husband moved to Mexico?

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On the first issue, we explained that the husband would have difficulty maintaining two households if the wife moved to Mexico. The husband was already working two jobs in order to support his family. If the wife moved to Mexico, he would need to support her in Mexico. Additionally, his children would either live with her or stay with him. If the kids lived with him, he would need 12 hours of child care per day while he worked. We explained that he had no immediate family capable of helping with child care, so he would need to pay for child care. He would not be able to afford that while also helping to support his wife in Mexico. We explained that if the children lived in Mexico with the wife, there would be safety issues for all of them. We provided a psychological evaluation for the husband that showed that he was experiencing severe anxiety over the prospect of his wife and children living in Mexico for the next 10 years.

We provided extensive documentation to support our claims of extreme hardship. The final packet was over two hundred fifty pages long. We filed the I-130 visa petition earlier this year, and once it was approved, we were able to file the I-601A unlawful presence waiver with USCIS.

The couple is very happy. The next step is to set up the consular interview in Ciudad Juarez. The wife will go to the interview and she should be back in the United States with an immigrant visa (green card) within a 7-10 days.

If you are considering the I-601A process, contact The Nunez Firm to schedule a consultation.

 

Marco Rubio Says It’s Time for Immigration Reform Proponents to be Realistic on Immigration Reform

October 24th, 2013 No comments
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President Barack Obama is hoping that Congress passes a comprehensive immigration reform bill before 2013 ends, but some Republicans have news for him and other proponents: it’s time to be get back reality about what’s possible on that issue.

If you ask U.S. Sen. Marco Rubio, R-Fla., a member of the tea party factions, if Obama and Democrats want to see some movement on immigration reform then they are going to have to be willing to find some common group with Republicans. That common ground, based on his interview on “Fox and Friends” Tuesday morning, is to focus on where there is bipartisan agreement on the issue.

“First of all, I think we need to be realistic about it,” Rubio told the Fox News. “We’ve been lectured now for the better part of a month about how my side needs to be realistic about what was possible on Obamacare because the president controls the White House and the Democrats control the Senate. Now, I think it’s time for proponents of immigration reform to be realistic about what’s achievable on immigration.”

What’s more, president himself last week –pointing to immigration as one of three priorities where there is bipartisan agreement — said the way business is done in Washington, D.C. needs to change and urged lawmakers, “If we disagree on something we can move on and focus on the things we agree on and get some stuff done.”

The sticking point on immigration reform? What to do with the 11 million people who are in the United States without legal papers. Hence, the question now is whether Democrats and proponents of reform are willing to let lawmakers proceed to pass legislation in areas of reform where there is bipartisan agreement such as legal migration, border security, and more employer accountability.

Securities Exchange Commission Warns Foreign Investors of EB-5 Scams

October 23rd, 2013 No comments
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The Securities and Exchange Commission is warning international investors of potential scams offered through the EB-5 visa program, which presents investors in qualified projects a path to a residency visa.

The program is popular with property developers, who see EB-5 as a way to attract foreign investors. But the SEC and the U.S. Citizenship and Immigration Services are prosecuting companies that allegedly abused the system.

The SEC is “aware of investment scams targeting foreign nationals who seek to become permanent lawful U.S. residents through the Immigrant Investor Program (“EB-5″),” the agencies reported. “In close coordination with USCIS, which administers the EB-5 program, the SEC has taken emergency enforcement action to stop allegedly fraudulent securities offerings made through EB-5.”

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Under the EB-5 program, which was first developed in 1990, investors can earn a fast-track path to a residency visa if they invest $1 million in a job-creating commercial enterprise, or $500,000 in a “targeted employment area.”

In Chicago, the SEC alleges the promoter of the “world’s first zero carbon emission platinum LEED certified hotel and conference center” used false and misleading information to solicit investors. The complaint charges the developer with a “$156 million investment fraud,” including allegations that the individual falsely claimed that the project had received necessary permits and had received backing from major hotel chains.

The SEC is also prosecuting a case in Texas, where they allege the creators of a regional center falsely promised returns of 5 percent on their investment and started marketing the project before the business was designated as a regional center. The defendants also misused investor funds on personal projects, including the funding for a Cajun-themed restaurant, the complaint alleges.

“The fact that a business is designated as a regional center by USCIS does not mean that USCIS, the SEC, or any other government agency has approved the investments offered by the business, or has otherwise expressed a view on the quality of the investment,” the SEC warns. “The SEC and USCIS are aware of attempts to misuse the EB-5 program as a means to carry out fraudulent securities offerings.”

If you are considering the EB-5 immigrant investor program, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez

Re-Entry Permits – What is the Form I-131 Application for Travel Document?

October 22nd, 2013 No comments
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A resident alien may apply for a reentry permit for many reasons. A resident alien who intends to remain outside the US for more than six months but no longer than two years may apply if he does not wish to abandon his permanent resident status. A stateless resident alien may apply for a reentry permit if he is unable to obtain a passport from his country of nationality. Certain countries will not allow a resident alien from the US to visit their country without a reentry permit. This generally occurs if the resident alien is from a specific country and the visiting country wants evidence that the resident alien will be allowed to return to the US.

Conditional permanent residents may apply for a re-entry permit, but the validity shall not exceed the expiration date of the conditional green card. Reentry permits are valid for a maximum of two years.

Civilian employees of US Government agencies returning from assignments abroad do not require a reentry permit to reenter the US even if the absence is over one year. Alien applying for a reentry permit should use Form I-131, the Application for Travel Document. This form is also used to apply for a refugee travel document and advanced parole.

An individual filing for adjustment of status may file the Form I-131 concurrently in some situations. An alien must be physically present in the US in order to file the application, and any application submitted by an alien who is abroad when the application is made must be denied. 8 CFR 223.2(b)(1). When applying, the resident alien should send a copy of the valid I-551 along with other evidence of eligibility. If the applicant has changed his name, he must provide appropriate documentation to support such a change.

Reentry permits may not be delivered to the applicant’s foreign address. The permits may only be delivered to the applicant’s US address, a applicant’s attorney’s address, or the US embassy or consulate abroad. A reentry permit may not be sent to a travel agency.

Under some circumstances, the government may ban travel of permanent residents to certain countries. Such bans are published in the Federal Register. Exceptions to the ban are listed in the Federal Register as well. If the applicant wishes to travel to a banned country and none of the exceptions apply, the Form I-131 and re-entry permit must be denied.

The applicant must show that the intended absence is only temporary. USCIS officers will scrutinize cases carefully to determine temporary absence intent. Among other things, USCIS will look at previous absences, employment, family, and property ownership in the US.

Whether the applicant has ever claimed nonresident alien status for federal income tax purposes is important as well.

The fact that an applicant may be inadmissible upon return to the US is not a ground for denying a reentry permit. This is crucially important. Some aliens have applied for a re-entry permit as a way to see if USCIS/CBP/ICE will deem them inadmissible upon return from a trip. This is mistaken logic. USCIS can and will approve a re-entry permit even if the alien has criminal convictions that will make him inadmissible upon returning to the US. You need to consult an experienced immigration attorney before applying for the I-131 re-entry permit.

If you are a resident alien with a green card and are considering an extended absence from the United States, contact The Nunez Firm to schedule a consultation. The I-131 can be a straightforward process if it is done correctly, but applying under certain circumstances can result in complications, denials, and possible removal proceedings. The Nunez Firm has handled countless re-entry permit cases.

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