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job creation and economic growth—are often cited by economists as strong reasons to reform our outdated immigration system.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.

The Case To Reform EB-5

by Joseph P. Whalen

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)^[1]. 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^[2] 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^[3] ). 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.

Job Creation.

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, and
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.

As 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.

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^[4]

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.]

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Footnotes

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

Washington, D.C. - October 13, 2011

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

September 22, 2011 - Ahmedabad

Facing unemployment of over 9 per cent, the US is trying to woo high networth individuals (HNIs) from India through its employment-based immigrant visa EB-5.

"Due to lack of awareness, the participation in EB-5 investor programme from HNIs in India is low. In first six months this year, only 40 Indian investors have availed the programme as compared to 62 in 2010," Green Card Fund (GCF) Managing Partner Greg Wing said here today.

"Around 10,000 EB-5 visas are available every year, but so far not more than 4,200 have been availed in any given year by investors in the US from across the globe," he said.

GCF is a federally-approved United States Citizenship and Immigration Services (USCIS) regional centre for EB-5 programme. It has joined hands with Fox Mandal (FMAS), an Indian consultancy and advisory firm, to create awareness about the investor programme for job creation in US.

As part of its promotional drive in India, GCF, jointly with FMAS, will be organising seminars to educate HNIs in cities like Ahmedabad, Surat, Hyderabad and Chennai.

The EB-5 programme enables a foreign national secure green card (permanent residence) for himself as well as for his family (children up to 21 yrs) by making an investment of USD 5,00,000 into American commercial business that creates at least 10 jobs for US citizens, Ashok Kumar Joshi of FMAS said.

FMAS is the facilitator of this programme in India.

"The investment of half a million dollars in American commercial business shall be refundable to the investor over next three to four years' period with some minimal interest," said Wing, referring to advantages of the programme.

"GCF offers projects in sectors like education, health care, clean energy and healthcare facilities," Wing said.

China topped with 866 investors under the programme in 2010, followed by South Korea (295), Great Britain (135) and India (62). The programme helped US attract investment of USD 1,104,500,000 in 2010.

Link to Original Article:  http://articles.economictimes.indiatimes.com/2011-09-22/news/30189346_1_eb-5-programme-indian-investors

Los Angeles, September 3, 2011

David Joyce marched his way to the front of the U.S. immigration line using his pocketbook, sinking half a million dollars into a Vermont ski resort.

The British citizen had spent years in a futile effort to secure green cards for himself, his wife and their 9-year-old son so they could relocate to sunny Florida. Then, a fellow emigre tipped him off to a little-known federal program that helps foreigners gain permanent U.S. residency by investing in American businesses.

"In six months, we had our green cards," said Joyce, 51. "Considering everything we've been through, this was easy."

Joyce is one of thousands of foreigners speeding through the U.S. immigration labyrinth — for a price.

Those who invest $500,000 in a U.S. enterprise that creates at least 10 jobs in a rural area or a community with a high unemployment rate are eligible for special visas that put them and their families on the fast track to becoming permanent residents.

For some wealthy immigrants lacking the family ties or special skills required for traditional U.S. visas, it's the fastest way to establish permanent residency apart from marrying a U.S. citizen. Investors aren't required to work in the business or participate in its management; some never even see the enterprises they buy into.

The federal program, known as EB-5, is relatively small, capped at 10,000 visas annually. But applications have skyrocketed since 2006 as entrepreneurs and cash-strapped towns have begun aggressively wooing wealthy foreigners as a low-cost source of capital.

In San Bernardino, the city is tapping EB-5 funds to redevelop its downtown theater district. In Jupiter, Fla., overseas money is fueling the construction of an outdoor amphitheater, marina slips and entertainment hub. In Philadelphia, it was used to expand a hospital complex and improve a school for disabled children.

Once the federal government gives preliminary approval to a project and conducts background checks, the would-be immigrant can invest in the deal and apply for the visa.

But the government's initial approval doesn't always lead to desired results.

Some immigrants have faced deportation when their investments failed to create enough jobs or otherwise didn't comply with program rules. Others have secured their green cards but lost their entire investments when projects foundered.

Yet the prospect of U.S. residency has proved so enticing that some are willing to take the chance. Once approved for the program, the investor can apply for a conditional green card, good for two years. If the investment creates 10 jobs during that time, he or she can apply to live in the U.S. permanently.

Applications from mainland China have soared in recent years, fueled by well-off parents eager to get their children into U.S. schools.

"They can afford to do this," said Zhang Runan, an immigration attorney in Washington.

Proponents laud the program as a way to boost struggling local economies while rewarding immigrant risk-takers.

In the hamlet of Jay, Vt., where Englishman Joyce was part of a $215-million investment pool, EB-5 money has helped finance luxury condos and a new ice hockey arena. Up next: an indoor water park, a golf complex and a hotel aimed at attracting more visitors to the ski town hit hard by the recession.

"We tried going to banks, but the lending environment was impossible," said Bill Stenger, chief executive of the Jay Peak Resort. "There is no way we could have done this without EB-5."

But some critics contend this is little more than a cash-for-visa program, one that is more beneficial to project promoters than the depressed communities it's supposed to help. A cottage industry of middlemen has emerged to introduce investors hungry for permanent U.S. residency to American developers and communities eager for money.

A flurry of EB-5-related websites has popped up with pitches written in Chinese, Korean, Spanish and Arabic. Promoters regularly offer seminars in hotel ballrooms in China, as well as in the U.S., proffering deals and collecting hefty fees.

(Source: The Los Angeles Times)

August 2, 2011 - Washington, D.C.

Secretary of Homeland Security Janet Napolitano and U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas made an announcement today regarding a series of policy, operational, and outreach efforts to fuel the nation's economy and stimulate investment by attracting foreign entrepreneurial talent of exceptional ability or who can otherwise create jobs, form startup companies, and invest capital in areas of high unemployment.

The section of the press release that is most relevant to EB-5 can be found here:

"The EB-5 immigrant investor program is also being further enhanced by transforming the intake and review process. In May, USCIS proposed fundamental enhancements to streamline the EB-5 process which include: extending the availability of premium processing for certain EB-5 applications and petitions, implementing direct lines of communication between the applicants and USCIS, and providing applicants with the opportunity for an interview before a USCIS panel of experts to resolve outstanding issues in an application. After reviewing stakeholder feedback on the proposal, USCIS is developing a phased plan to roll out these enhancements and is poised to begin implementing the first of these enhancements within 30 days."

The full text of the USCIS press release can be found here: http://www.dhs.gov/ynews/releases/20110802-napolitano-startup-job-creation-initiatives.shtm

According to a recent report published by China Daily USA - Chinese homebuyers are currently the second largest group of international homebuyers in the United States.  Of the $41 billion in international sales for US homes, Chinese buyers made a significant contribution representing 9% of all international homebuyers in the US for 2010 - up from just 5% as recently as 2007.  Unsurprisingly, Canadian homebuyers made up the largest part of international purchasers of US homes, with 23% of international buyers coming from Canada. 

According to the article, Arizona is among one the most popular states for international home buying - with Arizona, California, Florida, and Texas accounting for a considerable 58% of international home sales in the United States.  Reasons cited for increased Chinese spending on US properties include high property prices in China, higher purchasing power of the yuan, and the desire to immigrate.  The article goes on to speculate that the rise in home buying may be partly attributable to the popularity of the EB-5 visa program.

Source: China Daily USA