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What is required of EB-5 investor?

He or she must show the last five years of tax returns, proof that they have any ownership of businesses, a police certificate, last five years of bank statements, document showing any criminal convictions, and identification documents, and most importantly he or she must show how the money was legally earned.

What is source of funding, or origin of fund?

This is the most difficult part of the EB – 5 process, simply because $500,000 invested must originate from a legal source. Most businessmen obtain money through legal source but then transferred it into multiple investments, which needs to be tracked in order to use that money for the EB 5 program.

For example, if someone sold some real estate in the country three years ago and made $700,000, that $700,000 would have probably been allocated into another business ventures and mixed with other from non-traceable sources. At least $500,000 has to be retraced and brought back into a personal bank account in order for the person to claim they have a legal source of funding.

In order to prove the legal source of funding, US CIS not only needs all the real estate sales documents, but also records of all the wire transfers to the various accounts and proof of funds being sent back to the individual’s personal account.

What is required of EB-5 investor?

He or she must show the last five years of tax returns, proof that they have any ownership of businesses, a police certificate, last five years of bank statements, document showing any criminal convictions, and identification documents, and most importantly he or she must show how the money was legally earned.

What is source of funding, or origin of fund?

This is the most difficult part of the EB – 5 process, simply because $500,000 invested must originate from a legal source. Most businessmen obtain money through legal source but then transferred it into multiple investments, which needs to be tracked in order to use that money for the EB 5 program.

For example, if someone sold some real estate in the country three years ago and made $700,000, that $700,000 would have probably been allocated into another business ventures and mixed with other from non-traceable sources. At least $500,000 has to be retraced and brought back into a personal bank account in order for the person to claim they have a legal source of funding.

In order to prove the legal source of funding, US CIS not only needs all the real estate sales documents, but also records of all the wire transfers to the various accounts and proof of funds being sent back to the individual’s personal account.

Below please see an example of how to prove the source of funding.

If an individual cannot prove how they obtained their $500,000, they can ask a wealthy friend to give them the $500,000. If the wealthy friend gifts the $500,000 for the EB-5 applicant, the wealthy friend will have to show how his $500,000 gift was legally obtained.

So hypothetically, the wealthy friend has a salary of $200,000 a year and deposited the money into his personal account. Once $500,000 from his salary is deposited into his personal bank account that should be enough proof of the legal source of funding. However if during that time money was taken out of that personal account and different money from different sources was deposited into the applicant’s personal account the legal source of funding has not been approved.

So even if $500,000 of legally earned money is deposited into the wealthy friend’s bank account that may not be enough to prove legal source of funding, if at any time money was taken out of that account and money was re-deposited from each separate source.

As you can see, to prove the EB-5 source of funding to the US government imposes is a higher burden of proof.

But as with every case we would look at the individual’s total financial situation and find the clearest path to prove the legal source of funding for the EB – 5 program.

What is the difference between E2 Visa and then EB – 5 green card?

E2 visa is different because it does not lead to a green card. It is a temporary visa that can be renewed on a two or five year basis, and the requirements for an E2 visa is about $100,000 investment into United States where you have to set up a business and then to see the money spent in the United States. USCIS is getting much stricter with these visas, and is also requiring usually a minimum of two or three people on payroll along with making sure the hundred thousand dollars has been spent on the US business in United States.

An EB-5 Regional Center is an organization designated by United States Citizenship and Immigration Services (USCIS) that sponsors capital investment projects for investment by EB-5 investors. The major advantage for regional center designation is that the regional center can take advantage of indirect job creation.

EB-5 applicant invests $500,000 into a regional center, and If the process goes smoothly, the entire family could receive their green card in about 12 to 14 months. The money is held for around six years, each year the EB-5 investors are supposed to receive a yearly return on their investment

Is there fraud in the EB 5-regional center programs?

There are some regional centers that have a questionable background and questionable track record. In fact, 2013,the U.S. Securities and Exchange Commission (SEC) announced that The U.S. District Court Judge, ordered the return of more than $147 million in funds to investors who had given capital to the Intercontinental Regional Center Trust of Chicago. And presently there is a regional center in Texas and a regional center in South Dakota that are under investigation by federal authorities.

The foreign investors who invested capital into these regional centers did not receive the proper advice and did not do the proper due diligence before they invested in these regional centers.

It depends on what the EB-5 regional center the investor wants: if he or she wants a large return of their investment, they may choose a risky or regional center that offers a high return.

If they just want their $500,000 return at the end of a six-year time they may choose a regional center with a high success rate who gives a very low return.

 

*** Andrew P. Johnson, a New York Immigration Lawyer, practices immigration law and has litigated immigration cases throughout the country. His office handles all immigration issues and problems. The Law Offices of Andrew P. Johnson has submitted proposed regulations for Congress in order to help streamline the US CIS. In addition, Andrew P. Johnson, has been invited to speak in front of United States ambassadors and United Nations ambassadors regarding all aspects of immigration law. The law office can reach for comments regarding Immigration Reform at 212.693.3355 or apjlaw@gmail.com.

No immigrant can know all the details of Immigration Law, but below is a list of “Dangers” that all immigrants should be aware of so that their situation does not become come worse.

1) Once a Judge orders you deported, and your case has not been re-opened, if you show up at any US CIS office, you may be immediately detained.

2) Before you sign any immigration document, you must know what information is stated in on the form. Stating false facts on an immigration application can bar you from any immigration benefits for life.

3) If anyone says they can get you a social security card or employment authorization card without explaining anything more, it is an extreme likelihood that they are going to file false immigration documents that may bar you from immigration benefits for life.

4) At the end of any immigration form, the applicant must sign and the preparer must sign; if the person who is helping you fill out the form (the preparer) will not sign the application, do not file the form.

5) Avoid attorneys who answer your questions by saying, “Do not worry, I’ll take care of it,” or “Don’t worry, I know people on the inside of immigration,” or “I guarantee a green card.” (there are no guarantees in immigration law)

6) Avoid attorneys who will not provide a written agreement of payment and do not clearly explain your immigration situations and options. If you leave an attorney’s office without knowing your exact immigration situation and options, find a new attorney.

7) Make sure the attorney is real and qualified. If someone claims to be an attorney, ask more questions, a real attorney will not be offended:

Example Questions:

What State are you licensed? (people with degrees outside the US are not allowed to practice law in US)

What other types of law do you practice? (be careful, immigration law is an extremely difficult field of law, if an attorney handles many different non-immigration cases, they may only know a little immigration law)

How often are you in immigration court, and how many years have you practiced immigration laws. (these are usually good indicators of the person competency with current the immigration system)

8) If in Court and you do not plan on leaving the country in the next 3 months, do not take Voluntary Departure (VD), it stops you from getting any immigration benefit for 10 years.

9) With any new law or talk of a new law, scam artists appear everywhere to take advantage of immigrants, and that is the most important time to speak to an experienced immigration attorney. Remember, the law must be pass the Senate and House of Representatives and then usually be signed by the President before the law becomes effective.

10) Make sure you have copy of your entire file, if the attorney refuses to give you a copy, find another attorney.

Andrew P. Johnson, a New York Immigration Lawyer, practices immigration law and has litigated immigration cases throughout the country. His office handles all immigration issues and problems. The Law Offices of Andrew P. Johnson has submitted proposed regulations for Congress in order to help streamline the US CIS. In addition, Andrew P. Johnson, has been invited to speak in front of United States ambassadors and United Nations ambassadors regarding all aspects of immigration law. The law office can reach for comments regarding Immigration Reform at 212.693.3355 or apjlaw@gmail.com.

H – 1B prediction for April 1, 2015

For over 15 years of practicing the immigration law, we have encountered years wherein the H – 1B applications were filled up within the first day, and we’ve seen the H-1B visa program available throughout the entire year. Not only is every year different, in prior years the number of H – 1B has varied. Fortunately, for the last few years the number has remained at 85,000. Last year there were about 50% rejection rate based on a roughly 164,000 H-1B’s submitted. The question we are receiving from our clients is “Do we believe the percentage of rejection will be higher than 50%?” First off, those who have a Masters degree in the United States have an advantage of additional 20,000 H – 1B available to them, and if rejected, their H – 1B application gets move to the regular 65,000 available H – 1Bs. Therefore, our prediction is for the regular 65,000 H – 1Bs that are available by April 1, 2015 for an October 1st, 2015 start date. Based on the economy improving and the H – 1B applications that our clients have already submitted to us to prepare, we are estimating a 50% or 55% rejection rate. We hope that we are incorrect and that more H – 1Bs will be accepted but we have prepared our clients for this possible scenario.

Now that the new Congress will open in January, the question arises as to whether or not there will be more H – 1B’s available for the fiscal year 2015. Last year, about 164,000 H –1B visas were submitted to US CIS and only 65,000 were made available to non-US masters degree and undergraduate applicants. Furthermore, an additional 20,000 were made available only to US masters degree applicants. Therefore, there was roughly a 50% denial rate of all H – 1B applications. This year H – 1B advocates are urging Congress to increase the number to 185,000. However, there are two big obstacles for getting the increase in H – 1B visas. First, the House and Senate have realistically only three months to prepare and pass the bill to be signed by the President. Second, the House and Senate have stated that the President “poisoned the well” with his executive order on immigration. Unfortunately, although this has nothing to do with the business visas, the President’s actions may well encourage the House and Senate to do nothing with respect to increasing the H – 1B visas for the fiscal year 2015.

Present Process

With immigrant visas and naturalization, U.S. CIS will issue a receipt notice for the various filings, and then issue an additional receipt notice scheduling a fingerprint appointment. The applicant then must go to a specific location and be fingerprinted. This appears simple enough; however, the U.S. CIS has backlogs and confusion on numerous cases based on a lack of fingerprinting or expired prints. Some of the problems and delays that occur are: the applicant’s file maybe held or lost while new fingerprints are taken; a case may never get an interview because the fingerprints were never completed or expired; or the U.S. CIS mailed the fingerprint notice to the wrong address. Thousands of U.S. CIS cases are backlogged and delayed per year based on lack of fingerprints or expired fingerprints.

Proposed Process

Presently, the U.S. CIS Web site allows an applicant to check his or her case status online. The applicant inputs his or her EAC number and can find out if the case is pending, approved, or denied. The U.S. CIS should add a section that shows fingerprints status: “Fingerprinting completed” (together with the expiration date of the fingerprints), or “Fingerprinting not completed.” If the fingerprints are not completed, expired, or soon to expire, the applicant should have the option of scheduling a new fingerprint appointment online and pay a $25 fee by credit card. The applicant would print out the new fingerprint appointment online. This allows applicants to be proactive in their cases and will reduce backlogs based on lack of prints or expiration of prints. U.S. CIS will have fewer continuances, rescheduling, and delays based on expiration of fingerprints.

Present Process

A present request within the scope of the Freedom of Information Act [hereinafter FOIA] for immigration files takes about 30 to 90 days. U.S. CIS must locate the client file, have it transferred so the FOIA department can manually scan the documents into a PDF file, and then mail the file on a compact disc to the applicant. U.S. CIS must locate and then manually scan millions of pages each year.

Proposed Process

As stated in Chapters 1-4, U.S. CIS and EOIR should simply allow aliens to submit all applications by PDF. Each year, the amount of pages that are manually scanned would be reduced by millions of pages, and eventually, U.S. CIS will have a computer file for each alien. When a FOIA request is processed, U.S. CIS can retrieve the PDF file and send it by email if requested by the alien or copy the file in PDF format. The faster U.S. CIS can convert to electronic files, the faster it can eliminate the millions of pages it needs to scan each year for FOIA requests.

Positions that require at least a Master’s degree and have a Specific Vocational Preparation [hereinafter SVP] code of 8 or higher and which are to be filed by an alien who has a U.S. Master’s degree or higher should be automatically exempt from the PERM requirement. The Department of Labor created SVP codes with 9 levels. The employer would file directly with the U.S. CIS an I-140 Petition and Wage Determination. The employer would also be required to pay an additional $2,500 fee to the U.S. CIS which could be used to create higher education scholarship funds or training for U.S. workers.

The PERM process is burdensome and unnecessary for industries that have a clear shortage of applicants with a specific skill set. Moreover, the Department of Labor will have fewer applications for the PERM Process while still controlling the application process for permanent residency as the Department of Labor can continually adjust the “short list” of skilled jobs needed in the U.S. economy.

 

This chapter will primarily focus on obtaining permanent residency via Program Electronic Review Management [hereinafter PERM] certification process for skilled workers, professionals, and advance degree holders. Currently, (other than National Interest Waiver Cases) any such PERM case must be first certified by the Department of Labor. This process can take several months and often costs thousands of dollars in advertising and other fees.

We would have the Department of Labor to issue an annual list of occupations that have been clearly recognized as in “short demand” for each state. The list would also include the Department of Labor’s findings on what the minimum requirement for the position should be as well as the minimum wage. As these occupations would be recognized by the Department of Labor as in demand, the standard labor certification process of pre-advertising and wage requirement would be omitted.

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Andrew P. Johnson - Immigration Lawyer