The EB-5 immigrant visa program grants Lawful Permanent Residency in the United States (a Green Card) for investors who invest $1,000,000.00 in a new commercial enterprise (NCE) in the United States which will facilitate U.S. economic growth by creating at least ten full-time jobs. However, if the enterprise benefiting from the investment is in an “Employment Targeted Area” or “Rural Area,” the capital investment in the NCE need only be $500,000.00. One of the main conditions of this program is that investor must be able to create ten new full-time jobs for U.S. Citizens or Permanent Residents within two years of the date the investor is granted conditional residency (a Conditional Green Card). At the end of the two years, if the NCE creates ten jobs, the conditions on that green card are lifted, and the investor (and his or her family) becomes a permanent resident. This is normally an arduous process which requires day-to-day management of the NCE. Moreover, immigration laws regarding such investments are very complex; therefore, it is important that the investment itself and the creation of the ten new jobs meet statutory requirements. However, there is the possibility of outsourcing the process in order to ease the burden on the investor.

If the proposition of outsourcing the investment and creation of jobs is appealing, then the prospective investor should explore the option of investing in a NCE affiliated with an EB-5 Regional Center. It is vital to remember that Regional Centers are not USCIS-approved investment projects. They are only investment projects which USCIS has reviewed and approved to receive funds from investors, who can also submit an EB-5 Application to obtain Permanent Residency based on their investment. However, it is up to the investor do their due diligence regarding the NCE and the Regional Center to ensure that the Regional Center and the NCE are bona fide. One of the main advantages of investment in a Regional Center project is that USCIS will permit the Regional Center-affiliated NCE to count indirect and induced jobs in addition to direct jobs towards the job creation requirement. Additionally, investors in a NCE affiliated with a Regional Center need not be engaged in the day-to-day management of the new commercial enterprise. Instead, the investor need only be involved in the decision-making process of the NCE. Therefore, the investor does not need to live close to the investment project. Moreover, the investor can engage in any other business or work for a U.S. employer thanks to the new Green Card obtained through investment in the Regional Center-affiliated NCE.

Chiranjaya Nanayakkara Attorney __________________________________________

March 2015

EB-5: OUTSOURCING AN

INVESTMENT THROUGH A

REGIONAL CENTER ___________________________________________________________

TABLE OF CONTENTS

__________________________________________________________________

EB-5: Outsourcing an Investment

Through a Regional Center COVER

Alphabet Soup 2

Gathering Documentation:

FOIA Requests 3

Adjustment of Status:

Avoiding Bars to Re-Entry 4

In the News 5

One Step Ahead 6

ALPHABET SOUP

When immigrating from abroad to the United States, there are certain steps in the process which

are handled through U.S. Consulates and Embassies.

NVC: National Visa Center When USCIS approves an immigrant petition, it is sent to the NVC to begin pre-processing, which

involves collection of visa application fees and supporting documentation, which the NVC then

forwards to the appropriate consulate or embassy.

CP: Consular Processing When a prospective immigrant has had their petition approved and has an immediately available

immigrant visa number, they may then begin CP through a U.S. Consulate to obtain their immigrant

visa so they may be admitted to the U.S. as a permanent resident.

CEAC: Consular Electronic Application Center

A website run by the DOS, the CEAC allows immigrants to submit their visa application form

online, as well as pay certain fees associated with CP. The CEAC also permits electronic

submission of applications for certain nonimmigrant visas.

Often, an applicant for immigration benefits or the respondent in an immigration case may lack documentation necessary to effectively pursue their claims. However, many of these needed documents may already be in the hands of the governmental agencies with which the individual has interacted throughout their process. A valuable tool for procurement of copies of such documents at minimal cost is the submission of a FOIA request to those agencies.

“FOIA” refers to the Freedom of Information and Privacy Act, which affords individuals the right to request access to the records of an agency of the federal government (with certain exceptions or exclusions for national security and other purposes). The relevant agencies for immigration purposes include agencies such as USCIS, CBP, ICE, and EOIR.

There is no required format for a FOIA request; however, each agency does have particular forms for submitting such a request, and using the correct forms can help speed up responses. Furthermore, many agencies now provide online tools for submitting FOIA requests as well. There is no fee for submitting FOIA requests, but costs may be assessed later for administrative purposes such as copying of records. However, the main drawback of relying on a FOIA request to procure documentation is the fact that responses often take months, and may sometimes even take years.

A FOIA request to USCIS should be submitted to the National Records Center (NRC), which maintains records for USCIS. NRC FOIA requests may be submitted by

mail or via e-mail. Generally, the forms which should be submitted by your legal team are a Form G-28 and a Form G-639, and at times a Form DOJ-361 as well. Processing times can vary a great deal, and while simple requests may take only a few months, more complex requests may take up to a year.

CBP has various locations for FOIA submission based on the type of records sought. In addition, CBP also accepts submissions via their online system. The relevant forms are also the Form G-28, the Form G-639, and the Form DOJ-361. Processing times for CPB are usually a bit longer, the normal range being around 12-18 months for a response.

ICE handles immigration records compiled for law enforcement purposes. Submissions may be made via mail or e-mail. Again, the relevant forms are the Form G-28, the Form G-639, and the Form DOJ-361. While processing times vary, ICE FOIA requests generally may take over a year for completion.

EOIR FOIA requests are made to procure records from immigration court proceedings. Submissions may be made via mail or e-mail, and require Form DOJ-361 and Form G-639. These FOIA requests are often processed relatively quickly, taking an average of 2-3 months.

When adequate information is not available for a request to the above agencies or there is difficulty in establishing the identity of the applicant, it may be advisable to first submit a FOIA to the Office of Biometric Identity Management (OBIM). OBIM conducts searches of records by fingerprint and A-number, and provides a US-Visit report regarding the applicant. The relative forms are the Form G-28 and the Form G-639, in addition to which a fingerprint/biometric card should be provided. While OBIM has experienced wait times of up to 8 months, the recent addition of staff has begun to eliminate the backlog.

GATHERING DOCUMENTATION:

FOIA REQUESTS ______________________________________________________________________

Angela Anthony Legal Assistant ______________________________________________

Many people who are married to U.S.

citizens or have lawful permanent resident

(LPR) relatives may petition to qualify for

green cards but can face certain major barriers

to the process. Among these are “three- and

ten-year bars” to reentry, provisions of the law

which prohibit applicants from returning to the

United States if they were previously here

illegally. Section 212(a)(9) of the Immigration

and Nationality Act imposes re-entry bars on

immigrants who are present in the United

States for a period of time without any lawful

status, leave the United States, but then wish

to re-enter the country lawfully. A three-year

bar to readmission applies if an immigrant

enters the country without inspection, or if he

or she overstays their valid period of

admission by more than 180 days but by less

than one year. A ten-year bar applies when the

immigrant applicant stays in the country

illegally for a period of more than one year.

If the applicant for a family-based Green

Card is the spouse, parent, or child (under the

age of 21) of a U.S. citizen – categorized as an

“immediate relative” of a U.S. citizen – and if

the applicant entered the United States with a

valid visa, the applicant may be eligible to

adjust status while in the United States,

without having to leave the country. However,

all other people applying through the family-

based system must go abroad and obtain a visa

at a foreign U.S. consulate in order to adjust

status, a procedure known as “consular

processing.”

Waivers of the three- and ten-year bars

are available, but only where extreme hardship

to an applicant’s U.S. citizen or LPR spouse or

parent can be established. Hardship to solely

the immigrant applicant is not considered a

factor, and neither is hardship to an immigrant

applicant’s U.S. citizen children. Whereas

formerly immigrant applicants had to leave the

country to apply for a waiver at a consulate

abroad and await the results in uncertainty, the

current system in place tries to alleviate the

ambiguity of the situation. Now, individuals

may apply for a waiver while still stateside,

wait for the process to be completed, and –

upon approval – leave the United States with

confidence and in certainty of their return.

They may then obtain their immigrant visa at a

consulate abroad and re-enter the United States

freely.

Due to the limitations on eligibility for

waivers, it may sometimes be preferable for a

nonimmigrant who has overstayed their visa to

exit the United States prior to the date the three-

or ten-year bar will be implemented rather than

to take the risk that the waiver application may

be denied.

To explore how you may benefit from

the current waiver program, please contact an

immigration attorney.

WNRG NOW OFFERS FREE IN-PERSON INITIAL

CONSULTATIONS EVERY

THURSDAY

AT OUR HOUSTON OFFICE

PLEASE CALL (281) 265-2522 TO REQUEST AN APPOINTMENT

ADJUSTMENT OF STATUS:

AVOIDING BARS TO RE-ENTRY __________________________________________________________________

Varsha Shirhatti

Legal Clerk ____________________________________________________

IN THE NEWS…

__________________________________________________________________

Hearing on Federal Application for Stay on Injunction Blocking Executive

Action set for April 2015

A hearing has been set for April 17, 2015, in the Fifth U.S. Circuit Court of Appeals in New

Orleans regarding the emergency motion by the Justice Department to lift the preliminary

injunction issued by the U.S. District Court of for the Southern District of Texas halting

implementation of President Obama’s Executive actions on expanded DACA/DAPA. The

hearing was quickly scheduled as part of request granted to expedite the appeal regarding

the injunction. Initially, the Justice Department had requested that the District Court lift the

injunction while the case was appealed, but the request was put on hold due to allegations

that federal prosecutors had misled the judge regarding the issuance of three-year reprieves

from deportation while the judge was deciding on the injunction. U.S. District Judge

Andrew Hanen may issue sanctions against the Justice Department if he finds the U.S.

government had begun implementation of expanded DACA while the case was ongoing.

Rate of Denials for L-1B Petitions by USCIS at an All-Time High Despite No

Recent Changes in Adjudication Standard

An L-1B visa allows an employer to transfer an employee with “specialized knowledge”

into the United States, as long as the employee has worked at least one year abroad for the

employer and has “special knowledge of the company product and its application in

international markets or has an advanced level of knowledge of processes and procedures

of the company.” In Fiscal Year 2014, the denial rate of L-1B petitions by USCIS had risen

to the rate of 35 percent, with employees of Indian origin having made up 56 percent of

those denials in the last three fiscal years. Furthermore, renewal petitions for L-1B

employees have been denied at higher rates than initial applications. In addition to this,

Requests for Evidence, which extend and delay the petition process, have been issued at

correspondingly high rates, with Indian petitions again receiving the highest amount of

requests. Employers have found the recent standards for L-1B approval to be relatively

arbitrary, and these issues in addition to the delays and additional employer compliance

costs involved are discouraging international employers from transferring employees into

the United States via the L-1B visa. However, on March 24, 2015, USCIS issued a policy

memorandum in order to provide further adjudication guidance on the L-1B program, which

will hopefully help to clarify and resolve some of these issues.

BALCA Upholds Denial of Application for Permanent Employment

Certification Due to Inadvertent Employer Failure to File a Complete

Recruitment Report with Audit Response

The Board of Alien Labor Certification Appeals (BALCA) upheld the denial of ETA Form

9089, Application for Permanent Employer Certification, where an employer response to an

audit notification which requested the recruitment report failed accidentally to include the

entire report, the first page being omitted. In a motion for reconsideration, the employer

attached the first page of the recruitment report, and asked that the Certifying Officer (CO)

excuse the oversight, since the audit response had included evidence which documented the

efforts detailed on the missing recruitment report page. However, the CO refused to

consider the missing page, stating the employer was prohibited from providing such

evidence with the request for reconsideration under 20 CFR § 656.24(g)(2)(i), and reasserted

his denial of certification, which was upheld by BALCA.

ONE STEP AHEAD

When opening a process with your immigration law firm, try to have copies of

identification documents of the client immediately available. Whether family members,

personal representatives, or the clients themselves are opening a process, it is best to provide copies

of identification documents such as a passport, driver’s license, or other photographic identification

of the relevant parties to the process to the firm. This will not only clarify the actual applicant or

petitioner in a process for the legal team, but will also ensure that names are entered completely

and accurately into the firm’s records, especially when an individual does not tend to use their full

legal name when interacting with others. Furthermore, it will usually provide basic information

that is generally needed in most processes, such as date of birth and country of origin.

Tune in to the attorneys of WNRG as they discuss

important immigration law issues and updates:

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Editor’s Note:

This newsletter is intended merely to inform, and

not as a substitute for legal advice from your

attorney on any specific matters. If you have a

legal problem, please consult your attorney.

~ Angela Anthony

Legal Assistant

To submit questions or comments regarding this newsletter, please send an e-mail with the subject line “Newsletter” to aanthony@grwpc.com.