A recent editorial on the Green Valley Hospital was published in the Green Valley News and Sun:
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The EB-5 visa for Immigrant Investors is a United States Visa created by the Immigration Act of 1990. This visa provides a method of obtaining a Green Card for foreign nationals who invest money in the United States. In order to obtain the visa, individuals must invest $1,000,000 (or at least $500,000 in a "Targeted Employment Area" - high unemployment or rural area), creating or preserving at least 10 jobs for U.S. workers.
To date, Green Card Fund has successfully raised a combined total of $60.5 Million of Foreign Direct Investment for Odysey Prepatory Academy and Green Valley Hospital.
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Green Card Fund is a gold sponsor for the event and will be there to support EB-5 professionals and investors interested in GCF's EB-5 projects.
We look forward to seeing you at the event.
Green Card Fund is a gold sponsor for the event and will be there to support EB-5 professionals and investors interested in GCF's EB-5 projects.
We look forward to seeing you at the event.
A beautiful flyover video showcasing some of the most stunning scenes in the United States was recently forwarded to us and we wanted to share this with anyone interested in EB-5 or U.S. Immigration. It can be too easy for those working with the USCIS EB-5 program, whether as service providers, regional centers, immigration attorneys, EB-5 investors, or potential investors, to lose sight of why immigrating to the United States is so desirable. Our country offers residents and visitors alike some of the most amazing natural and man-made marvels of the world, including Central Park in New York City, Mount Rushmore in South Dakota, The Golden Gate Bridge in San Francisco, Monument Valley, the Grand Canyon and Sedona in Arizona, Washington, D.C., Niagra Falls in Buffalo, NY, the Mississippi River, and a whole host of other wonders, freedoms, and conveniences enjoyed by all residents of the United States. Please enjoy the video and leave comments below.
On August 2, 2012, the US Senate voted unanimously to reauthorize the highly beneficial EB-5 Regional Center Program for another 3 years by passing S.3245. Other programs that were extended in the vote include E-verify, J-1 and religious worker visas.
While in its original form the bill was introduced as a permanent reauthorization of the EB-5 program, the US Senate has remained consistent in its three year reauthorization of the Regional Center program, although the current passage of the bill has come almost 60 days prior to the proposed sunset date of the program – showing a more proactive approach to supporting EB-5 than has been seen in previous years.
Stakeholders in the EB-5 industry have met this temporary renewal of the EB-5 program with great optimism.
In addition, Congress has agreed “in principle” to a 3 year reauthorization of the EB-5 Regional Center Program. Since the House is currently in recess, it will be addressing this issue via suspension of the rules (with no floor debate) at some point in early September after the recess is concluded.
Green Card Fund strives to provide investors, industry stakeholders, and other interested parties with the most up-to-date and relevant information on EB-5 possible. Please subscribe to our blog to receive email updates when new information is posted.
Today is a great day for the EB-5 program and Green Card Fund thanks everyone in the industry who worked to support the reauthorization of the program and the U.S. Senate for its unanimous, resounding support for EB5.
It should also be noted that it was clarified during the Q&A portion of the stakeholder call on July 26, 2012 that the numbers for I-526 denials include petitions that have been voluntarily withdrawn by investors for personal reasons - making the actual number of favorable decisions at the I-526 stage a larger percentage of total applications than is shown in the data. Unfortunately, the USCIS has yet to distinguish between petitions that are denied and ones that were withdrawn in their published data. It is hoped by this author that more detailed information will become available in the future - increasing transparency and offering investors and EB-5 stakeholders a clearer picture of what is actually happening in the world of EB-5.
The 80th Annual Conference of Mayors recently adopted a resolution that strongly supports making the EB-5 program permanent. The full language of their reoslution on EB-5 can be read below:
The original list of resolutions can be found here:
NEW YORK (CNNMoney) -- Good riddance, Eduardo.
Facebook co-founder Eduardo Saverin drew public ire last month following the revelation that he had renounced his U.S. citizenship, a move widely seen as a tax dodge. But thousands of wealthy foreigners are lining up to replace him, making investments here and putting themselves on a path to citizenship in the process.
The State Department expects to issue over 6,000 "investor visas" in the current fiscal year, which would be an all-time record. Other countries, meanwhile, are following the U.S.'s lead, keen to spur growth in lean economic times.
"Our goal is certainly job creation, and that's what this program is all about," said Bill Wright, a spokesman for U.S. Citizenship and Immigration Services. "At the same time, it's allowing somebody from a foreign country to come and invest in our nation."
Under the government's EB-5 Immigrant Investor program, foreign investors can get conditional visas that allow them and their families to live, work and attend school in the U.S. To qualify for the visa, they must invest at least $1 million in a new or recently created business, or $500,000 for businesses in rural or high-unemployment areas.
The investment must be demonstrated to have created or preserved at least 10 full-time jobs for U.S. workers within two years. Assuming this condition is met, investors and their families graduate to permanent resident status, and can apply for full citizenship three years later.
While the EB-5 program has been around since 1990, demand has been surging as of late, fueled in large part by China's growing elite, who accounted for 70% of the roughly 3,500 investor visas issued last year. State Department officials expect the program's quota of 10,000 visas per year, which includes visas given to the spouses and children of investors, to be filled for the first time ever within the next year or two.
Some critics of the U.S. program question the fairness of letting wealthy immigrants pay for special treatment, while others say investments and job creation claims need stricter vetting. Immigrants who arrive via the program have no guarantee of recovering their investments, and may face deportation if they don't produce the required number of jobs.
Of the roughly 12,000 immigrants who've arrived on the EB-5 investor visa, just 39% have earned permanent residency, according to USCIS data.
There's also the lengthy application and approval process -- a 2005 study by the Government Accountability Office said the program's reputation for red tape had dampened interest among foreigners in the preceding years.
USCIS press secretary Christopher Bentley said in an email that the agency "continues to take steps to enhance [the EB-5 program's] efficiency and integrity." USCIS recently expanded the team of analysts responsible for evaluating EB-5 projects and proposals, he said.
Whatever the program's problems, interest has been growing in recent years, and meanwhile, the U.S. has faced increasing competition from other countries trying to woo well-heeled foreigners with the promise of residency or citizenship.
In January, Ireland announced a new residency program for immigrant investors, and Australia unveiled a similar program last month.
"Governments are reinvigorating their policy and their resources around this," said Eric Major, the CEO of Henley & Partners Ltd, an international consulting firm based on the European island of Jersey that specializes in immigration assistance for the wealthy.
Around 20 countries currently offer residency or citizenship by investment, Major said, a figure that may soon grow with economies struggling in much of the developed world. Major said he had met with five governments in the past eight months to discuss such programs.
Demand shows no sign of slowing down, either. International travel, banking and communication have become increasingly easy, while Asia, in particular, is minting new millionaires at a rapid pace.
"At no time in human history have we ever been so mobile and has there been so great a wealth effect from China and India," Major said.
In the U.S., the immigrant investor program has been responsible for at least 46,810 jobs and more than $2.3 billion in investments since its inception in 1990, according to U.S. Citizenship and Immigration Services.
That's a small fraction of overall foreign investment in the U.S., but it comes at no cost to the government. Were the EB-5 program to meet its 10,000-visa quota, it would contribute more than $4.4 billion to GDP and create or preserve nearly 75,000 jobs annually, according to a 2010 report prepared for the government by consulting firm ICF International.
The EB-5 program is up for renewal in the fall, and while USCIS says it has "no indication" that the initiative will be allowed to expire, some supporters are more wary.
"We can't let our guard down," said David Andersson, an immigration attorney and president of the Association to Invest In the USA. "The deadline approaches and Congress just demonstrates a reluctance to get things done."
For foreign investors, Andersson said, the main appeal of immigration to the U.S. is access to good schools for their children or other family-related concerns.
That was the case for Jordan Gagner, a Canadian investment manager who came with with his wife and three children to Arizona in 2009. His wife had come down with a serious case of rheumatoid arthritis, a condition exacerbated by Vancouver's cold, wet weather.
"We just thought, we've got to get down to a climate that's more conducive to this disease," Gagner said.
Gagner invested in an assisted-living complex being constructed in Washington. He and his family now have green cards giving them permanent resident status, and plan on applying for citizenship as soon as they're able.
"We're fiercely proud about Canada, but there's things we love about the U.S. that Canada just doesn't provide," Gagner said.
Link to Original Article: http://money.cnn.com/2012/06/11/news/economy/citizenship-foreign-investment/
Congressman Jared Polis unveiled legislation today that would create a “Start-up Visa” for entrepreneurs and update the EB-5 visa system to help create American jobs by encouraging investment in U.S. companies.
“With our economy still struggling to create jobs, we should be taking every possible step to encourage investment to start and grow businesses,” said Polis. “The American Entrepreneurship and Investment Act will modernize our immigration system, allow great companies to launch and grow in the United States, and bring in needed capital to create jobs.”
The EB-5 immigrant investor visa is one of five employer sponsored visas and is designed to attract foreign capital to the U.S. Each year, 10,000 EB-5 visas are available and 3,000 are reserved for the pilot Regional Center Program for those who invest in federally designated a Target Employment Area (TEA). TEAs are rural areas or those that have experienced high unemployment.
To obtain an EB-5 visa, applicants must invest $1 million ($500,000 in a TEA) and create ten full-time American jobs (5 in a TEA).
Polis’ legislation, the American Entrepreneurship and Investment Act (H.R. 5874), would streamline and speed-up the application process; permanently reauthorize and expand the pilot Regional Center Program; and, create the “Start-up Visa” for foreign entrepreneurs who have already attracted investors so that they can locate their company in the U.S.
By Reid Thomas
We recently read about a situation where investors’ funds were allegedly misused by their EB-5 Regional Center. This story demonstrates the need for greater security and transparency during the EB-5 capital raise process. Placing funds in escrow is the first step to protecting funds and is good for Regional Centers and investors alike.
Read the full complaint regarding the alleged misuse of EB-5 investors’ funds.
For investors, security of funds is vital. As mentioned in Jill Jones’ 4 reasons to use an escrow in EB-5, an escrow structure increases funds security, which not only puts Regional Centers at ease, but it also increases the investors’ confidence in the project. EB-5 Regional Centers that place funds in escrow accounts are sending a strong and positive message to their investors. The motivation to invest in EB-5 projects is primarily to obtain a permanent green card, and less so for the investment returns. By using an escrow during the I-526 approval process, Regional Centers demonstrate that they understand and care about the investors’ priorities first and foremost.
An escrow arrangement ensures that each investor’s funds are held in a secure, segregated account while awaiting I-526 petition approval. In the unlikely event that an investor’s I-526 petition is denied, the escrow account helps to ensure that the funds are readily available for refund to the investor. Funds are disbursed only under the agreed upon terms of the escrow agreement, which remain fully transparent to the Regional Centers and their investors. This provides their investors with an extra layer of security and peace of mind.
NES Financial is dedicated to providing the utmost security to the EB-5 industry. Our industry-leading escrow administration solution offers a streamlined approach to administering investors’ deposits which provides the highest levels of security and transparency to investors.
Reid is responsible for global sales and marketing at NES Financial. He brings over 20 years of experience in sales and marketing at both private and public companies, and has held executive sales and marketing positions at other high growth Silicon Valley companies including Sylantro Systems, an industry pioneer in Voice Over IP, VINA Technologies, where he significantly increased the company’s revenues and market share leading to a successful IPO in 2000, and Octel Communications, which was acquired by Lucent Technologies. Most recently Reid served as SVP of Global Sales at Laszlo Systems, a global leader and pioneer in Rich Internet Applications. He holds a degree in Electrical Engineering from Queen’s University at Kingston, Ontario.
EB-5 Regional Center Economic Development Program Hits Historic High
More capital investment available for job-creating projects than ever before
CHICAGO, February 1, 2012 – The Association to Invest In the USA (IIUSA), the trade association for the EB-5 Regional Center Investment Pilot Program, today celebrates a new historic high in Program utilization for the first quarter of FY2012. US Citizenship and Immigration Services recently reported 2,364 EB-5 visas issued in the first three months of the current federal fiscal year. This equates to at least 10,000 new jobs for American workers. At this pace, the 2012 Program will come close to using its 10,000 annual visa allocation for the first time since the Program’s inception in 1994. 10,000 EB-5 Visas would mean at least 40,000 new jobs for US workers.
At a time of limited liquidity around the United States, the EB-5 Regional Center Investment Pilot Program is finally coming of age. Globally integrated marketplaces now facilitate the exchange and migration of capital, resources and people across international borders at an ever-increasing rate. As a result, the Program is able to account for more foreign direct investment now available for American job creating enterprises than ever before.
“These recent numbers confirm the trends that our industry has been seeing for the last couple of years.” said K. David Andersson, President, IIUSA, “We are a functioning example of 21st century economic development policy that works. Thanks to the Regional Center Investor Pilot Program, thousands of Americans are employed today, and at no cost to the American taxpayer. This Program needs to be a permanent part of the American economic development toolbox.”
Despite its record setting statistics and growing economic impact, the EB-5 Regional Center Investment Pilot Program is due to expire in September 2012, absent action from Congress. IIUSA estimates failure to reauthorize the Program in a timely manner would squander a golden opportunity to create over 100,000 new U.S. jobs through investment losses of at least $10 Billion in foreign direct investment over the next five years. IIUSA calls on Congress to support our efforts to create new jobs by immediately passing permanent reauthorization of the EB-5 Regional Center Pilot Program.
The contributions of immigrant entrepreneurs—innovation, job creation and economic growth—are often cited by economists as strong reasons to reform our outdated immigration system. However, the kids of immigrant entrepreneurs receive relatively little attention. Delving into the experiences of these adult children of immigrants provides a new lens through which to witness the struggles and triumphs of parents and their children as they pursue the American Dream.
A new report by the Immigrant Learning Center (ILC) puts a human face on the children of immigrant entrepreneurs. Adult Children of Immigrant Entrepreneurs: Memories and Influences shares the stories of 36 children of immigrants representing a wide variety of countries of origin and family businesses. Some were born in the U.S. and others immigrated here in childhood. While their stories differ, they all have one thing in common: their immigrant entrepreneur parents and experiences growing up around the family business heavily influenced their desire to pursue an education and the American dream.
All of the young adults interviewed witnessed firsthand their parents’ struggles as they integrated into their new home in the U.S., ingraining them with a strong work ethic. They spent long hours along side their parents in their place of business. While most gained valuable experience taking on various activities, many parents shielded their kids from manual labor, encouraging them instead to interact with customers, keep the books, or other business-related tasks. Because they often had better English language skills than their immigrant parents, many of them served as de facto language brokers. Spending time working alongside their parents provided them with valuable business and social skills, giving them the confidence that allowed them to excel in school.
Pen Khek Chear, whose parents came to the US as Cambodian refugees, said:
“My dad did not want to teach me to be a jeweler [like him] because he was afraid I would like it. My parents wanted me to get an education and be a ‘respectable professional’ and not have to do ‘hard labor.”
Pen obtained a Master’s in Social Work from Boston University.
Because of their own struggles, education is very highly valued by immigrant entrepreneur parents, and the young adults interviewed had achieved high education levels. Many of the people interviewed had pursued graduate school after graduating from college. They related how their immigrant parents wanted them to excel educationally, get good, stable jobs, and live more comfortable lives than their parents had. The kids recognized that their parents had performed difficult manual labor, and had sacrificed their weekends and worked all the time so that they could pursue higher education. ILC found that “there is an inherent appreciation among the adult children of immigrant entrepreneurs for the sacrifices their parents made to ensure that they have successful careers and lead normal lives in their adopted homeland.”
Like many American families, the immigrant entrepreneurs highlighted in this study want their children to excel and have opportunities that they themselves did not have. While their children may not always get along with their parents, they recognize the tremendous sacrifices their parents have made for them. Not only did the young adults interviewed excel in school and in their careers, but they also chose careers that allow them to give back to the community. The American Dream is alive and well in these immigrant families.
Many Rich Chinese Consider Leaving
By JEREMY PAGE
BEIJING—More than half of China's millionaires are either considering emigrating or have already taken steps to do so, according to a survey that builds on similar findings earlier this year, highlighting worries among the business elite about their quality of life and financial prospects, despite the country's fast-paced growth.
The U.S. is the most popular emigration destination, according to the survey of 980 Chinese people with assets of more than 10 million yuan ($1.6 million) published on Saturday by Bank of China and wealth researcher Hurun Report.
While growth has slowed, China's economic performance is still the envy of the Western world: It registered annual gross domestic product growth of 9.1% in the third quarter, and the International Monetary Fund has forecast growth of 9.5% for all of 2011.
Concerns are mounting, however, that China's growth could be derailed by a raft of problems, including high inflation, a bubbly real-estate sector and a sharp slowdown in external demand.
Many Chinese who have profited most from the country's growth also express increasing concerns in private about social issues such as China's one-child policy, food safety, pollution, corruption, poor schooling, and a weak legal system.
Rupert Hoogewerf, the founder and publisher of Hurun Report, said the most common reason cited by respondents who were emigrating was their children's education, followed by a desire for better medical treatment, and the fear of pollution in China.
Mark Ralston/Agence France-Presse/Getty Images
A man walks past an advertising display at a luxury mall in Shanghai. Thousands of rich Shanghai residents have turned China's most cosmopolitan city into the luxury capital of a country that is expected to become the world's largest market for the sector between 2012 and 2015.
"There's also an element of insurance being taken out here," he said, citing concerns about the economic and political environment.
He cautioned, though, that it was unclear if the survey results signaled capital flight as many high-net-worth individuals who were emigrating also said they were keeping much of their money invested in China.
China maintains capital controls that make it hard for rich Chinese to move their money out of the country, but there are substantial loopholes in the system.
Some economists say they have detected signs of large capital outflows in recent months, likely driven by a decline in global risk appetite and expectations of slower yuan appreciation.
A research report from Bank of America Merrill Lynch's strategy team in Hong Kong last month cited "hot-money outflows" as one of four systemic risks that could lead to a hard landing for China's economy. It said that a sign of such outflows were record gambling revenue in the gambling enclave of Macau, a former Portuguese colony near Hong Kong, where many mainland Chinese go to gamble.
In another indication of the jittery mood among China's rich, several Western embassies have also noted a marked increase this year in the number of applications for investment visas, a category that allows people to immigrate if they invest a certain amount of money, according to diplomats.
There is evidence, too, of an uptick in the number of Chinese people buying high-end properties in major Western cities, especially London, Sydney and New York, according to property analysts.
Another survey published in April by China Merchants Bank and Bain & Co. showed that almost 60% of high-net-worth individuals in China had either arranged for, or were considering emigration. Of those, more than 20% had already completed their immigration applications, or made the decision to apply, according to that survey, which covered 2,600 high-net-worth individuals.
China Merchants Bank and Bain estimated that in 2010 there were 500,000 people in China with "individual investable" assets valued at 10 million yuan and 20,000 people with 100 million yuan or more.
Bank of China and Hurun estimated there were 960,000 people with "personal assets" of at least 10 million yuan, and 60,000 people with 100 million yuan or more.
Their survey, conducted in May to September, covered 18 major cities including Beijing, Shanghai, Wuhan, Nanjing, Dalian and Suzhou, and interviewed respondents with an average age of 42 and average personal assets of 60 million yuan.
The survey showed that 46% of respondents were considering emigrating, while an additional 14% had either already emigrated or filed immigration applications.
Mr. Hoogewerf said respondents with assets of 100 million or more were even more inclined to emigrate, with 55% considering leaving China, and 21% already living overseas or having filed applications.
The top destination among those emigrating was the U.S., accounting for 40%, followed by Canada with 37%, Singapore with 14% and Europe with 11%, the survey showed.
One-third of respondents said they had assets overseas, and an additional 28% said they planned to invest abroad in the next three years. Half of those with overseas assets listed their children's education as the reason, while 32% cited emigration.
The U.S. was the most popular destination for their investments, accounting for 42%, and property was the most popular type of investment, accounting for 51%, according to the survey.
Reprinted from the Wall Street Journal
The Dial In # is 1-888-810-9647 Passcode: EB-5.
The announcement states that policy guidance will be uploaded for public comment at uscis.gov/outreach very soon.
Please check back regularly for updates.
October 22, 2011 - Scottsdale, AZ
Surge in Charter Schools - and Their Students
by Michelle Reese
When examining the percentage of public school students in charter schools, Arizona has led the nation for years.
This year, it may have taken a leap.
Based on estimates provided to the Arizona Department of Education by Arizona’s charter schools in September, an additional 14,000 students enrolled in their campuses over last year.
Last year’s 100-day average daily membership reported by schools was 119,253. Schools provided an estimate — conservative in most cases, said the department’s Lyle Friesen — of 135,155 around Sept. 15. Though most schools won’t hit their actual 100th day of school until January, they are required to make an estimate to receive payment from the state.
There were 508 charter schools in Arizona last year, comprising more than 23 percent of the state’s public schools. More than 11.5 percent of public school students were attending charter schools in Arizona, according to report released this month by the National Alliance for Public Charter Schools.
The robust growth will continue, said Arizona Charter School Association’s CEO and president Eileen Sigmund, as parents seek out options and additional schools open.
“Are we at our saturation point? No, we’re not,” she said, pointing to a recent enrollment event for Great Hearts Academy in Scottsdale. “They filled it in 98 seconds at 6 a.m. for the 2012-13 school year. Ninety-eight seconds.”
According to the Arizona State Board for Charter Schools, 33 new charter schools opened this year, from Tucson to Flagstaff and from Peoria to San Tan Valley.
Legacy Traditional School opened three new facilities, including its Athlos campus in Chandler. Even though the school opened a week late because of construction, 405 students are there in grades kindergarten through seven, and 60 kindergartners are already enrolled for next year.
“There are more parents who want charter schools than there are spaces available,” said Bill Gregory, director and founder of Legacy Traditional Schools.
There’s also still some confusion about what charter schools are. Some parents still think they’re attached to local school districts (a possibility, but it doesn’t happen often) or are private schools.
For the record, charter schools are public schools that receive state funds. They were created by lawmakers in 1994.
“There are those who are savvy parents and know, but there’s still, ‘This looks good, but how much is it?’ ” Gregory said, referring to questions about tuition.
Charter schools cannot charge tuition. They receive funding based on the number of students attending the school. But unlike districts, they cannot ask taxpayers for additional funds to maintain or build campuses.
Legacy Traditional School Athlos was built with the help of investors and a partnership with Velocity Sports Performance. The new multipurpose building includes an indoor synthetic turf area, alongside a large weight room and basketball court. In the evenings, when school is not in session, Velocity will use the building.
Besides the school’s focus on back-to-basics education, there is a large physical education component. The school’s physical education teachers received instruction from Velocity’s trainers.
“Here, we are offering something the public schools and other charter schools aren’t offering,” Gregory said. “There are the academics and the athletics. With the facilities we have, it’s something parents are really excited about.”
Patty Colehour enrolled her two children, a kindergartner and fourth-grader, this year at Legacy Athlos. Her oldest was already getting a back-to-basics education through a district school, but Colehour was impressed with the commitment from Legacy to provide extra help through tutoring or to move students forward once they master a level.
“It’s not the same vibe,” Colehour said of the Legacy campus. “You want to be here. You want to be a part of it.”
While there are new charter schools opening each year, there’s also a strong group of charter schools with a history of success.
Mesa Arts Academy is one of them. The school serves 230 students near downtown Mesa. Though the school doesn’t advertise, there’s a waiting list at most grades, said principal Sue Douglas.
Alongside budget cuts from the state, it’s prompted Douglas to increase class size the last few years. Most classes have around 24 students with a teacher and an aide.
The school, which received an A from the state earlier this month, often sees 100 percent of its eighth-graders pass the math portion of the AIMS test, Douglas said.
“I have people who drive in from Queen Creek, Maricopa, all over, all because of our results,” she said.
While there are success stories, Sigmund said the state charter school board takes its charge to watch school performance.
“The main authorizer, the State Board for Charter Schools, is saying, ‘If you’re not moving students ahead academically and your students aren’t proficient, then we’re going to take steps to start closing you down,’ ” Sigmund said. “The charter movement is no longer about choice, but good choice for parents and students.”
Reposted from the East Valley Tribune
The Case To Reform EB-5
After doing more in-depth research into the creation and development of the Immigrant Investor path towards a green-card, I have come to the realization that it is misclassified or at the very least the statute is inadequate to the underlying desired outcome. The Immigrant Investor visa classification is codified as the fifth preference employment-based visa at INA § 203(b)(5). Preference category visas are technically limited to specific proportions of all visas available annually and are allocated in accordance with a precise formula that takes into account the limited worldwide and per country levels as well as authorities and processes described in INA §§ 201 through 205. It is for these underlying reasons that it has been necessary to be as fair as possible in issuing visas. The first step involves the filing of a petition for classification for the desired category of visa. It has evolved that this filing date will be used as a "priority date" which secures the "beneficiary" of the petition their place in a potentially very long line for a visa. Owing to the importance of the priority date, certain expectations have come into being and as have developed over time through the agency and court interpretations of the statutes and the statutory scheme. The realm of the "preference category visa petition" is a specific context. This particular context demands that the beneficiary shall be fully qualified and statutorily eligible for the visa classification at the time of filing and must remain so through time of adjudication and ultimately at time of visa issuance and in some cases beyond that for a specified period of time and with conditions attached to retention of status.
Immigrant Investors are initially granted a conditional status and will then be required to prove that they are deserving of the lifting of conditions at a later time. The only other immigrants who are initially granted a conditional status are those who gain status based on a recent marriage to either a USC or LPR who petitions for them. There is however another employment-based visa that has conditions attached to the attainment of the LPR status. The second preference employment-based national interest waiver provisions for physicians have strings attached. These physicians are not provided with conditional status, rather than that they have to fulfill conditions first and then get the full unconditional LPR status green-card. The physician may file an I-140 for the EB-2 NIW concurrently with an I-485 and get an EAD in order to legally work and fulfill the minimum commitment of service in a specified geographic area, medical specialty, facility, or for a particular qualified employer. In the alternative, a physician who has already met the minimum service will be granted LPR status faster after filing. There is always a certain amount of time required just to process and adjudicate anything. Even though e-filing will speed things up, immigration and nationality benefits will never be available like a pack of gum from a vending machine.
What do "Priority Dates" entail and encumber?
In general, one must be fully qualified for the visa classification at the time of filing. For instance, if a petition is filed for a child, then the beneficiary must meet the INA definition of a child as applicable. As an example, a step-relationship is reliant on several factors. The existing biological or adoptive parent must qualify as the parent of the child and the new spouse may be deemed a step-parent. IF the marriage is valid and legal and takes place before the child reached age 18 years and while the child was unmarried then the step-relationship has been formed. The child will only remain a child as long a petition is filed before the child reaches age 21 years. Depending on other factors a child may remain classified as a child beyond age 21 based on the CSPA (Child Status Protection Act) for visa issuance or adjustment of status purposes. Family-based visas may be either "immediate relative" or "preference visas".
In the realm of employment-based visas, they are all "preference visas". The importance of the priority date is really lost on some of the employment-based visa classifications because they are so hard to qualify for that they have never been oversubscribed and therefore always "current" for visa issuance or adjustment of status purposes. The fifth-preference "employment creation" or immigrant investor visa has always been "current" from day one of its existence. Competition has always been fierce but never robust. The coveted visa has always been a challenge to attain not from competition against a large pool of applicants but rather a struggle to meet the eligibility requirements and qualifications.
Congress has set some high bars. Some were on purpose: the minimum amount of capital must be invested and the alien must create or preserve a minimum number of full-time jobs for qualifying U.S. workers. Some high bars were inadvertent. For example, Congress took the previously created immigrant investor labor certification exemption category defined by INS via regulation and codified it among the preference visa categories. In doing so, Congress placed the "eligible at time of filing" yoke around the neck of the immigrant investor petition without clearly limiting the bare minimum eligibility that should be required in order to be so classified.
What Should The Minimum Requirements Be For EB-5 Investor Classification Approval?
First, they need to have the required investment funds. Second, IF they have not yet created the required jobs THEN they need a plan to create the required jobs. So for the vast majority, the bare minimum is enough money and a plan. Through regulation and Precedent, INS through AAO and later USCIS and the courts have shaped the requirements for an investor's "plan" to mean a comprehensive, detailed, and credible plan. The added requirements do not end there. The investor and his plan have subsequently been saddled with a prohibition against making a substantive material change. This became necessary in order to combat scam artists and fraudsters seeking to buy a green-card with lousy investment schemes and scams put forth by Regional Center promoters. The precautions have gone too far and may inappropriately block investors even (at least in theory) when they achieve the desired results of full investment and enough jobs. This point of a bare minimum as long as results are achieved needs clarification.
Bare Minimum Amount of Investment.
When INS created the immigrant investor labor certification exemption in 1966, they stated that the alien was required to invest or be actively in the process of investing a "substantial amount" of capital. Then INS set an amount. Initially it was $10,000, then it was increased to $40,000 (and there was an earlier attempt to set it at $25,000 that failed ). Then the whole program faltered because the non-preference visas were so scarce that the aliens stopped trying. Then there was almost no activity, then some visas were made available for those few who had actually made real investments. Finally, through IMMACT 90, Congress set the amounts at a significantly increased level to the current amounts of either one or one-half million dollars.
The other fulfillment requirement of creating or preserving ten jobs was a later addition. Initially, there was no such requirement. Then INS stated that the alien would need to work in his business and be qualified to do so. Then a requirement was proposed to require the alien to create jobs for U.S. workers but the earliest proposal was fought and defeated. The job creation element eventually came back as a regulatory requirement that the alien investor "will employ a person or persons in the United States of which he will be a principal manager and that the enterprisewill employ a person or persons in the United States who are United States citizens or aliens lawfully admitted for permanent residence, exclusive of the alien, his spouse and children."
The Investment Plan.
Rather than making an up-front showing of the two basic elements, most alien investors will submit a plan to achieve the job creation requirement and sometimes they include plans for completing the infusion of capital once first showing that they actually have it. It is the evidentiary weight assigned or ascribed to the up-front plans that needs further clarification and refinement. The current difficult economic realities involved in any investment are at the forefront of the minds of many investors and the general public at the present time but these realities have been and shall continue to be important considerations for all EB-5 investors. In all business-not merely EB-5, plans are made but are subject to change along the way. The artificial and arbitrary prohibition against substantive material change has grown beyond its limited usefulness and become onerous. The concept of material change and the prohibition against it as well as its application need further clarification and refinement.
Conflating "Eligibility At Time Of Filing" With Using An Impermissible "Material Change" In Order To Demonstrate One's "Basic Eligibility Qualifications".
Most importantly and above all else, the basic bare minimum eligibility qualifications required to secure a priority date under EB-5 needs clarification and refinement. The eligibility for securing a priority date is quite different from the fulfillment requirements that must be demonstrated for the lifting of conditions at the very end of the EB-5 process. Through the arduous path from the 1990 enactment through the scam period and reaction to that mess and finally 2011's current rethinking, some wires got crossed.
If you objectively look at EB-5, the requirements to secure a "priority date" are to:
1.) have enough clean money (lawful funds) available to invest, andAs was mentioned,most will rely on "plans" to create jobs. Through a slow evolution and in the course of combating fraud, far too much emphasis has been placed on the initial plan advanced by the alien entrepreneur at the time of filing the I-526. The concept of impermissible material change cropped up in the Regional Center affiliated I-526 context as to financial arrangements. It has spread to the job creation aspect or "business plan" in the I-829 context. In the Regional Center affiliated investor context, the "business plans" form the basis for the "economic analyses" that predict indirect job creation. So in the RC context the plans take on a greater significance. Material Changes to the RC affiliated business plans have a direct effect on the job counts and therefore may indeed undermine the investors' ability to meet the requirements for the lifting of conditions on status. Through the use of previously USCIS-vetted and approved plans, a Regional Center sponsor and/or the affiliated I-562 filer (immigrant investor) is pretty much locked-in to the approved plan in order to reasonably rely on USCIS deference to the job predictions and thereby to lift conditions. This is a precarious position and when substantive material changes happen, all bets may be off. Through the use of transparent complexity, contingency plans can be put forth up-front, thereby putting USCIS "on notice" of the potential changes or shifting from one vetted plan to another vetted plan. Although the final analysis at the I-829 stage may be slightly more complicated than desired, if the results bear out the job counts needed, then conditions can still be lifted and the question of an impermissible material change drops from the mix.
2.) have already started a business and created (or preserved) ten full-time jobs or be willing to take a stab at starting a business in which the alien will attempt to create (or preserve) ten full-time jobs, for legal U.S. workers.
The Time For Corrective Action Is At Hand.
USCIS is currently undergoing a metamorphosis as to the processing of the Alien Investor Program. Regulations and forms are being reviewed for the needed changes and are yet to be advanced for consideration through notice and comment rulemaking or Information Collections (ICs). As a small part of the government-wide retrospective review ordered by the President, ancillary matters are also under serious review simultaneously. AAO is still working on new regulations that are long overdue since the creation of USCIS as a part of DHS back on March 1, 2003. The form I-924 used in order to seek Regional Center Designation only came into use just under one year ago and is already up for revision. USCIS has already announced that further refinement to the I-526 and I-829 would take place in the near future. With so much up in the air at the same time, this is an excellent opportunity to address some fundamental underlying concepts and requirements and set the stage for successful expansion of the EB-5 Immigrant Investor Program for a long time to come. Above all other complaints from stakeholders, they want clear and consistent answers. They crave certainty. They desire reasonable reliance and have sought assurance of deference on settled points. Some shady characters seek to abuse any assurances as to deference and turn it into unreasonable reliance and would try to force USCIS to grant unworthy requests to lift conditions on the unfulfilled promises of failed businesses. Clearly, controversy can always be manufactured by anyone willing to devote some time to it. However, that is not a reason to be overly and unreasonably restrictive from the start. The inclusion of disclaimers and warnings should suffice to deflect the bogus claims of the unworthy when they come along in the future. A little additional background follows.
A Brief Synopsis of the History the Immigrant Investor Visa
Congress did not create the concept of an immigrant investor classification, they merely codified it and modified it twenty-four years after the fact in the Immigration Act of 1990 (IMMACT90). Previously, in 1965, Congress made a major overhaul of the Immigration and Nationality Act. That 1965 amendment did not include an immigrant investor visa category. The 1965 amendment included an undefined category of "other qualified immigrants" among the "nonquota immigrants" newly renamed "special immigrants" in INA § 101(a)(27).
INS Created the Immigrant Investor Classification
The "investor visa" was created originally in 1966, by INS through regulation utilizing the Attorney General's broad authority under INA § 103 [8 USC § 1103] by construing and interpreting INA § 203 [8 USC § 1153] (a)(8)'s "other qualified immigrants" who could demonstrate that they did not require a labor certification from the Secretary of Labor. It was not termed as a visa classification but rather as a "labor certification exemption". It seems that everybody needed some guidance on who the phrase "other qualified immigrants" actually applied to. Who exactly were these "other qualified immigrants" that did not need a labor certification?
These visas were allocated under INA § 203 (a)(8) but issued as a "special immigrant" class found in INA § 101(a)(27) [8 USC § 1101 (a)(27)]. The Immigration and Nationality Act Amendments of 1965 (Public Law 89-236, Sec. 8 (a)) renamed nonquota immigrants as special immigrants in INA § 101(a)(27). These special immigrants were eligible for visas and investors were among these immigrants but defined in the regulation, not the statute.
The original version of 8 CFR § 212.8 stated, in pertinent part:
(b) Aliens not required to obtain labor certifications. The following members are not considered to be within the purview of section 212(a)(14) of the Act and do not require a labor certification: .......
(4) an alien who will engage in a commercial or agricultural enterprise in which he had invested or is actively in the process of investing a substantial amount of capital.
[31 FR 10021, July 23, 1966; 31 FR 10355, Aug. 22, 1966, as amended at 34 FR 5326, Mar. 18, 1969][A modified version of this extraneous regulation is still in 8 CFR but has been slated for repeal as obsolete in the recent USCIS Business Transformation Rule I.]
For a much more extensive review of the older and current Administrative Decisions and additional court cases on the Immigrant Investor Classification from 1966 through 2011, see:http://www.slideshare.net/BigJoe5/a-survey-of-the-immigrant-investor-visa-1966-2011-june-27-2011-jw
Conditional status is given if the marriage is less than two years old at time of approval of I-485 or entry on an Immigrant Visa.
In an earlier version that was put forth in the rulemaking process, INS had wanted to make the minimum capital investment $25,000.00 and include a job creation element termed as a prospective economic benefit requirement. These additions did not make it into the final version codified.
For a much more extensive review of the history and development of the Immigrant Investor Visa see: http://www.slideshare.net/BigJoe5/a-survey-of-the-immigrant-investor-visa-1966-2011-june-27-2011-jw
Reposted from: http://www.ilw.com/articles/2011,1014-whalen.shtm
Continuing the recent flow of good news surrounding the EB-5 program, Presdient Barack Obama's Jobs Council mentions efforts to 'improve and leverage' the EB-5 immigrant investor visa program as part of his initiative to create jobs across the United States. Published by the President's Council on Jobs and Competitiveness, the report outlines ways in which the U.S. government can take action to bolster the economy and spur job creation within the United States.
The portion of the report that specifically talks about the EB5 program can be seen below:
"The Administration is working to improve and leverage the EB-5 immigrant investor visa program, another Council recommendation. DHS' Citizen and Immigration Services (USCIS) is enhancing the program by creating specialized review teams with business expertise, engaging re-engineering experts to streamline the process, launching a premium processing service and evaluating additional options for maximizing the program's potential."
The report goes on to talk about serious efforts to promote foreign direct investment in the United States and other job creating initiatives that affect both foreign and domestic policy.
A full-text PDF of the Council's report can be found here: http://files.jobs-council.com/jobscouncil/files/2011/10/JobsCouncil_InterimReport_Oct11.pdf