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.

President Obama’s Immigration Executive Order

Now individuals who have a US citizen or permanent resident child can get employment authorization for three years, even if they had been ordered deported, as long as they don’t have felonies and have entered the US by January 1, 2010.

This executive order also includes DREAM Act kids who entered the country before there were 16 and have entered the United States by January 1, 2010.

Also there was a restriction to apply for persons who were older than 31 years old. Now that has been erased and it does not matter their age as long as they entered the country before January 1, 2010 and they were under 16 years old.

Waiver, form I-601a

Now any person if they have a US citizen child over 21, or US citizen spouse, or permanent resident spouse or child can apply for the I-601a waiver. There used to be a standard requirement for proving extreme hardship, but now standard requirement is much easier than extreme hardship, that means more people will win the I-601a waiver.

The U.S. CIS time and cost savings would be achieved by not physically opening the application in the mail room and distributing the application to the proper department, manually processing the fee payments, scanning the paper case back into its own databases/systems, and searching for the hard file of the case. Instead this time can be spent on reviewing the cases which are already electronically filed, paid for, and already in PDF format.

Furthermore, U.S. CIS would save on mailing cost, paper cost, and ink and toner cost, and would be more environmentally friendly.

It is also important to note that transition to the above-described e-process should not be difficult. We are aware that the U.S. CIS is trying to transition to e-filings; however, we believe the process is too slow and perhaps its design is unnecessarily complicated.

Simple is better. There is no need, for example, for the U.S. CIS Web site to (at this stage) have e-filed forms which have to be completed on the U.S. CIS Web site. The U.S. CIS can simply allow petitioners and attorneys to register with their Web site (simple online form registration) and submit the U.S. CIS forms, credit card payment form, and supporting documents as PDF files. This process can be implemented immediately.

 

By utilizing readily-available and inexpensive technological solutions, the entire immigrant and non-immigrant process can be made cost and time efficient and provide a better “user experience” both for the petitioner and the U.S. CIS processing officers.

For example, let us take a look at the above-described process of filing an I-129 L-1A application. Instead of relying on paper filings and the old methods of duplicate hard copies and regular mail correspondence, the process can easily be converted to an online secure experience. The above-described filing/processing steps would be amended in the following manner:

  1. Petitioner and/or attorney register for an online account with the U.S. CIS (one-time registration);
  2. Petitioner files online Form I-129, pays processing fee online by credit card, and attaches supporting documents via PDF files which can either be directly uploaded to the U.S. CIS Web site or via third-party file upload service that would provide such service to the U.S. CIS (such as www.yousendit.com or www.dropbox.com which are used throughout the private sector);
  3. The U.S. CIS approves the file and emails the petitioner or the attorney Form I-797 in PDF format with included “bar code” which can be scanned by the U.S. CIS/ICE Officers at the port of entry or U.S. Embassy;
  4. If the U.S. CIS needs to request additional evidence before the case is approved, it would email the petitioner/attorney and the petitioner or his or her attorney could respond again via the online account and upload the PDF files. The attorney or petitioner can confirm receipt of the email; if there is no confirmation of the U.S. CIS email, the application can revert back to a mailing notice;
  5. If there is a breakdown in communication by either party, the case can always revert back to present mailing process. Therefore, the new procedure can be implemented immediately since the old mailing process will stay in effect as a default procedure.

Present Process

Business petitions and applications such as I-129 NIV Petitions (various classifications), I-140 Petitions, I-526 and I-829 Petitions are still processed by using paper copies. This system fails to utilize readily available and widely used technological solutions. The U.S. CIS system which receives, processes, and requests additional information is inefficient, technologically primitive, and burdensome for both the immigrant and the United States Government

Most business-based nonimmigrant and immigrant visa petitions must be paper filed. In some instances the U.S. CIS allows electronic filing of the U.S. CIS forms but it does not provide for the option of submitting the supporting evidence electronically as well.

Once the petitioner or his or her attorney paper-files a business-based petition, the U.S. CIS will respond to the petitioner or his or her attorney via hard-copy mail (unless the case is filed via the U.S. CIS Premium Processing Service which requires additional $1,225 payment to the U.S. CIS). If additional evidence is requested by the U.S. CIS, the petitioner and/or the attorney is required to, in most if not all circumstances, file a response in hard-copy format to the U.S. CIS.

To better illustrate this process, let us take an example of a petitioner who decides to file Form I-129, Petition to Obtain L-1A Nonimmigrant Visa Status. Typically, the petitioner must take the following steps:

  1. Hard-copy file Form I-129 with supplements and supporting evidence;
  2. The U.S. CIS receives the hard-copy filing and mails a receipt;
  3. The U.S. CIS approves the case and/or mails a request for evidence;
  4. The petitioner then submits his or her response to the request for evidence (typically via hard-copy filing unless the case was filed via the U.S. CIS Premium Processing Service and is less than 20 pages long);
  5. The U.S. CIS denies or approves the case. If the case is approved, the petitioner still must wait for mailed approval notice (Form I-797) in order for the beneficiary to use it at the U.S. Consulate or a port of entry.

As shown above, the current system requires numerous hard-copy mailings/filings and back-and-forth paper correspondence between the U.S. CIS and the petitioner and/or his or her attorney.

 

Proposed Process

A private attorney can email a simple form that will admit or deny the charges, state the form of relief requested, and will include a statement that the application has been explained to the alien in his/her own language that he/she understands the immigration court process. The form will be signed by both the attorney and the alien. The attached form will be emailed as an attachment with supporting applications and supporting documents. The form and documents would need to be submitted 10 days before the master calendar hearing to the assistant district counsel and the immigration court. The court would give the assistant district counsel five days to review the submissions and to object to any form of relief, which would be accomplished using another form. If the immigration judge finds the assistant district counsel’s objection meritorious, or the documents are not properly submitted, the immigration judge will require a personal appearance by private counsel and the alien for normal master calendar hearing. If the government does not respond, and the documents are submitted correctly, the immigration court can issue a date for trial.

Since only less than 50% of H-1B applicants were chosen this year for the lottery, there exist a dilemma of what to do next? Some applicants are able to apply for H-2B visas which are considered as seasonal visas. The applicants usually apply for an 11 month visa, and then have the option to file the application for H – 1B visa again in April 1, 2015. Depending on the circumstances of the company, the H – 2B will serve as a stop gap to allow the applicant another chance for the H – 1B lottery in 2015. Another option is an L-1A Multinational Executive Visa, and in some cases an L – 2B visa. Whether or not the applicant is eligible depends on the circumstances of the US company applying for him or her, and also the educational background and work experiences in their home country. In fact some applicants move to an F – 1 and take college courses, or even courses such as cooking, drawing or music classes while they wait to reapply in April 1, 2015 for the H – 1B lottery. Unfortunately, until Congress decides to increase the H – 1B visas per year to over 200,000, which was the case six years ago, applicants will have to find creative ways to stay in the United States while they wait to be chosen for the H – 1B lottery.

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Andrew P. Johnson - Immigration Lawyer