Articles Posted in Immigration

Many involved in the immigration process were waiting to see what Congress would do with the EB-5 program, which faced a fast-approaching sunset date. The answer to this question came in the form of a House Resolution that the president signed into law in early September. For now, the EB-5 program will continue going forward under the same rules and criteria that had existed before, according to a National Law Review report. The fluidity of the rules governing immigrant investors is just one of many areas where it helps to have knowledgeable Florida immigration attorneys on your side who are up-to-date on every aspect of the law and its potential impact on you.

The EB-5 immigrant investor program faced a looming deadline, set to expire at the end of the federal government’s fiscal year, or Sept. 30, 2017. H.R. 601, a bill much more prominently known for providing federal relief to hurricane-ravaged areas and for raising the so-called federal “debt ceiling,” ended that deadline countdown. The legislation, signed into law by President Trump, extends the program through Dec. 8.

While H.R. 601 made no changes to the EB-5 program, the Review report said that the law did, however, hold open the door for Congress to enact a reform bill governing the immigrant investor program. H.R. 601 explicitly created three possible end dates for the program’s renewed funding. They are:  “1. The enactment into law of an appropriation for any project or activity provided for in this Act; 2. The enactment into law of the applicable appropriations Act for fiscal year 2018 without any provision for such project or activity; or 3. December 8, 2017,” whichever comes first.

One of the many issues that has been a subject of federal reform legislation over the last several years has been immigration. Two senators recently introduced a bill that, if passed, would make major changes to the way the United States handles legal immigration. Among the many changes the bill would make would be to end certain aspects of the old system, including the EB-5 visa program, the Miami Herald reported. Whether Congress passes the current proposal, passes some other bill, or does nothing at all, working with experienced Florida immigration attorneys can help you be sure you are prepared for whichever changes take place.

The new bill, officially known as the Reforming American Immigration for Strong Employment Act, or the RAISE Act, is designed to curtail the volume of legal immigrants entering the United States. The bill, introduced on Aug. 1 by Republican Senators Tom Cotton and David Perdue (of Arkansas and Georgia, respectively) has as a goal cutting legal immigration in half. Both senators’ offices confirmed to the Herald that the RAISE Act, if passed, would end the EB-5 program.

The bill would not kill off the EB-5 program individually but would actually cease all employment-based categories for legal immigration. In their place would be a “points based” system for determining qualification for immigration. Other countries like the United Kingdom, Canada, and Australia already use a points-based system for qualifying immigrants.

The EB-5 immigrant investor program has provided considerable benefits to legitimate investors, immigrants and the communities where those investments take place. When, for example, an EB-5 investor uses the program to create affordable housing, everyone wins. Unfortunately, not all of the entities that have sought to participate in the program conduct themselves in an aboveboard manner. In one recent case, the US Securities and Exchange Commission went to court seeking a restraining order to freeze the assets of a Broward County limited-liability company that, the agency claimed, was actually a scam. Late last year, the US District Court for the Southern District of Florida issued that order, according to a SEC press release.

The person and business that was in the SEC’s cross-hairs was Lin Zhong and her Oakland Park-based company, EB5 Asset Manager, LLC. According to the original lawsuit document, which the SEC filed in federal court last November, Zhong used her company as part of an elaborate fraud designed to abuse the EB-5 program. Zhong allegedly told potential investors many falsehoods in order to secure their investment. Zhong communicated to investors that the money they put in would go for such things as a mixed-use commercial project along US Highway 1 in Port St. Lucie.

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Early in May 2016, the U.S. Department of Homeland Security published an official notice of its intent to modify the federal regulation that covers the fees that the government charges for various immigration application forms. Two of the applications that would be most profoundly affected by this proposed change are two prominently involved in the EB-5 visa process:  the Immigrant Petition by Alien Entrepreneur and the Application for Regional Center Designation. If the proposed rule takes effect as currently written, the cost of the application process for EB-5 visa seekers, as well as the cost for those seeking regional center status, would go up by several thousand dollars.

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Two former IT workers at Walt Disney World have launched legal actions against the entertainment giant, claiming that it engaged in a pattern of civil racketeering when it and two staffing companies conspired to lie to the government in completing H-1B visa applications as part of the employer’s plan to replace some 250 American workers with H-1B visaholders, the Orlando Sentinel and New York Times reported. Disney’s plan, according to the fired workers’ attorney, amounted to “systemically abusing the immigration system.”

The H-1B visa program exists to provide an opportunity for skilled workers and students to live and work in the U.S. These workers usually work in specialty fields like engineering, science, medicine, or law. Completing the necessary paperwork associated with the H-1B process involves several forms. One of these is the ETA (Employment & Training Administration) Form 9035 & 9035E. This form was the source of the employer’s alleged misrepresentation. Subsection 2 of Section I requires employers to certify that the employer’s hiring of H-1B workers will not displace American workers and will not affect the recruitment of American workers.

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With a potential government shutdown looming at the end of September, Congress passed a Continuing Resolution that funded the government through Dec. 11. As a part of this legislation, the EB-5 visa program, which had been set to expire on Sept. 30, also got extended to mid-December. With this six-week extension, several developers have taken advantage by pursuing building projects with the use of foreign investor funds through the EB-5 program.

One such project is the 83-story Panorama Tower in Miami. On Oct. 20, the South Florida Business Journal reported on an announcement from the tower’s developer, Florida East Coast Realty, stating that it was now allowed to accept EB-5 investor applications through the program’s regional center in Miami. The $800 million project would erect one of Miami’s tallest buildings. Earlier in the year, the Journal reported on a Canadian investor planning to invest $500,000 in the Panorama project, with hopes of then immigrating to the United States and securing a job in Silicon Valley. The realty company’s initial plans called for $160 million of the project’s funding to come from the EB-5 program, but they recently amended that number to roughly six percent, or $48 million.

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The U.S. Department of Labor, acting jointly with the U.S. Department of Homeland Security, recently issued an Interim Final Rule governing many aspects of the H-2B visa program. Some, including the departments, have hailed the new rule’s benefits for workers, while others believe that the rule’s changes will make using the H-2B more costly and more onerous for some employers.

The origins of the new rule stem from a recent decision by the U.S. District Court for the Northern District of Florida. That court concluded that the U.S. Department of Labor did not have the legal authority to issue regulations regarding the H-2B visa program. This decision wiped out the department’s 2008 regulations that set standards and procedures for certifying employers’ requests for importing H-2B workers and assessing the prevailing wage rates for temporary foreign workers.

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A U.S. Representative from Florida has introduced a bill recently that would alter the standards for qualification for E-2 visas and make it easier for foreign nationals who are business owners in the U.S. to stay in the U.S. permanently. The bill, if successful, would permit foreign nationals residing in the U.S. on E-2 visas to become eligible for permanent residency status after 10 years, Law360.com reported.

Currently, the E-2 treaty investors visa is a temporary work visa that allows non-citizens to enter the country legally by virtue of their having made an investment in an American business. To qualify, you must be a citizen of a country that has a treaty of commerce and navigation with the U.S. and place a “substantial amount of capital” into a business here.

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Two separate federal agencies have, in recent weeks, begun investigations looking into the way applications for EB-5 foreign investor visas are handled and approved. According to Bloomberg, the Securities and Exchange Commission probe centers on some attorneys who collected improper fees related to the visas, and the Department of Homeland Security is checking into certain applications that were approved despite the existence of “red flags” from the FBI and other agencies related to the applicants, ABC News reported.

The EB-5 program provides legal residency status to foreign investors whose investment amounts to $500,000 or more and create 10 or more jobs. The current SEC investigation relates to a rule regarding what kind of assistance attorneys can provide EB-5 applicants and what fees they can collect related to that work. Specifically, the problems can arise when a developer, who is seeking to raise capital for a project, looks for EB-5 investors to help fund the project and enlists the aid of an attorney to find those investors.

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Only a few days before hundreds of thousands, or perhaps millions, of undocumented immigrants would have become eligible to apply under the expansion of certain immigration programs, a federal judge in Texas issued a temporary injunction that prevents the federal government from processing applications. The injunction was issued as part of a lawsuit in which 26 states sued the federal government, alleging that President Obama’s expansion of existing immigration programs would cause them significant and irreparable economic harm by having to expend tax dollars to accommodate undocumented immigrants.

Last fall, President Obama issued an executive order allowing for the creation of a new immigration program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), as well as an expansion of an existing program, Deferred Action for Childhood Arrivals (DACA). Under the DACA program, young people who came to the US as children could apply for a status known as “deferred action.” Under this status, immigrants who entered the country before June 2007 and before their 16th birthday could obtain work permits and exemptions from deportation lasting for two years. Applicants must also be under age 31. The expansion of DACA would eliminate the age-31 requirement and move the 2007 cutoff to 2010.

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