Articles Posted in Immigration

Recently, President Donald Trump issued an executive order that significantly curtailed immigration through the end of 2020. One group not impaired by the new executive order, however, is EB-5 investors. EB-5 investors are exempted under the new rule, meaning they can still obtain their visas. EB-5 investors still face many challenges when applying for the investor visa before U.S. Citizenship and Immigration Services. One thing that you should not allow is to delay your visa process by making preventable mistakes like paperwork flaws or proof shortcomings. Protect yourself from those mistakes by ensuring you have the services of an experienced South Florida immigration attorney.

A Bloomberg piece reported that, while the worldwide coronavirus pandemic has caused serious disruptions in the EB-5 program, there is still some good news for certain EB-5 investors. In March, U.S. Citizenship and Immigration Services announced it was changing the way that EB-5 visa applications would be processed. Under the new protocol, visa applications would be processed on an “availability” basis, meaning that, if there is a visa available for you (or if there soon will be,) then your petition is given top priority by the agency. See the Department of State Visa Bulletin for visa availability.

Visit Visa Bulletin July 2020!

If that’s you, and you can obtain approval relatively quickly, the last thing you want is delays in your investor visa petition process. For example, even if USCIS has deemed your case a “top” priority, it can still be sidelined if the agency finds what it perceives to be errors in your paperwork. If your petition lacks the proper and relevant documentation required to established eligibility, it will delay your visa adjudication process. When that happens, the agency may issue a request for evidence delaying it, or worse, the agency could elect to deny your case outright.

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In November, new federal regulations went into effect that made it harder to obtain an EB-5 investor visa. Now, steps are being taken in various places to attempt to roll back these new regulations. The new regulations are being challenged in the federal courts. Members of Congress are also considering a new bill to ease its effects. What you should take away from all this is that EB-5 remains a viable option for obtaining a visa but that the rules are potentially changing. To make sure you are best positioned to respond to these changes and get the visa you seek, be sure you have a knowledgeable Florida immigration attorney representing you.

The new rules went into effect with an ostensible goal of curbing fraud and other misuse of the EB-5 visa program. The changes meant that the minimum amount that a foreign citizen was required to invest in order to qualify for an EB-5 visa went up to $900,000 (from $500,000) in targeted employment areas, and up to $1.8 million (from $1 million) in all other areas. The regulations shifted the responsibility for designating targeted employment areas from the states to the federal government.

The new regulations also shrank the number of areas that qualified as targeted employment areas. This change has the potential to have a massive impact on development in parts of Palm Beach and Miami-Dade Counties, which would stand to lose targeted employment areas in several key areas.

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Earlier this year, the U.S. Department of State published the statistics for fiscal year 2017 regarding the country-by-country breakdown of immigrants availing themselves of the EB-5 visa program. A trend in recent years that continued in 2017 was the dramatic uptick in Brazilians using the program. That increase also potentially serves as good news for investment projects in South Florida, which tends to be a leading target of Brazilian investors. To get the advice and advocacy you need regarding your visa application, make sure to retain the services of an experienced Florida immigration attorney.

In 2017, just like 2016, Chinese immigrants were the main users of the program, making up 75% of the pool of EB-5 visa recipients (as opposed to 76% in 2016). In 2017, as was true in 2016, the country most closely behind China was Vietnam. Brazil, however, surged to third on that list. In fact, the number of Brazilians who received EB-5 visas in 2017 was nearly twice the number issued to Brazilians in 2016 and an eight-fold increase from 2015.

While many Chinese investors tend to focus their investment efforts on New York City, those familiar with EB-5 visas and South American investors believe that the influx of Brazilian EB-5 visa seekers is good news for South Florida. Some observers believe that more than half of the Brazilian investors will put their money into projects in South Florida, according to therealdeal.com. Difficulties in the Brazilian economy, including inflation, have been a driving force behind the increase in Brazilian investors, according to the report.

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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