Announcement

Collapse
No announcement yet.

Article: Current State Of EB-5 by Joseph Whalen

Collapse
X
Collapse

  • Article: Current State Of EB-5 by Joseph Whalen

    Current State Of EB-5

    by Joseph Whalen

    Due to all the misinformation and rhetoric connected with this visa category and associated matters, there are some specific points that I feel need to be spoken aloud at this time.

    • The EB-5 Immigrant Visa is statutory.
    • It has been around since IMMACT90 created it at INA § 203(b)(5) [8 USC § 1153(b)(5)].
    • The basic visa classification has no expiration date.
    In a worst case scenario, IF the "Pilot Program" aka "Regional Centers" ceased to exist, THEN only those EB-5 investors who could demonstrate EB-5 "direct" jobs could get their conditions lifted. Due to the fact that the vast majority of EB-5 investors rely on "indirect" job creation, most I-829s would be denied and status would be terminated for the vast majority of EB-5 investors. That is highly unlikely to happen because it would be political suicide to whoever lead that fatal movement.

    The "Pilot Immigration Program" created by Pub. L. 102-395, title VI, Sec. 610, Oct. 6, 1992, 106 Stat. 1874, as amended numerous times since passage, is set to expire AGAIN on September 30, 2012. The Pilot Program legislation is not an actual part of the INA but is codified alongside it as 8 USC § 1153 Note: Pilot Immigration Program. This "Pilot Program" has already been approved for yet another three-year extension by the Senate. The House leadership has indicated that this matter would be taken up quickly after the Labor Day recess. The Pilot Program has been allowed to "sunset" in the past but it was later re-authorized retroactively.

    In the unlikely event of another "sunset", there is no reason to believe that it would not be re-authorized retroactively again. Legislators try to squeeze every bit of leverage out of everything as a general rule however, the EB-5 Regional Center concept has wide bipartisan support. Granted there are a few nutcases that hate everything that might allow any foreigner to enter the U.S. They are true xenophobes and are, quite thankfully, a distinct minority.

    The Pilot Program legislation is the statutory home of the Regional Center. Regional Center affiliation is required in order for "indirect job creation" to count towards the statutory job creation requirements for the individual EB-5 investors. There are many Regional Centers at the present time, some will succeed and others will fail. New ones will come along. That is the simple reality. Another simple reality is that EB-5 Regional Centers are only as good as the Specific Projects that they promote.

    With the forgoing in mind, the Regional Centers need to have core knowledge, skills, and abilities (KSAs) in order to select appropriate and viable projects, as well as coordinate multiple foreign and domestic investors. They must be able to time the execution of the multiple phases of the project with an eye towards meeting not only the specific project's goals but also the EB-5 program's goals. Lastly, but perhaps most importantly, the Regional Center must thoroughly plan ahead for future needs. The Regional Center must think of its own compliance reporting needs and for the tracking and collection of information, and gathering of necessary evidence for use by its EB-5 investors when they eventually seek to prove that they have met their goals and objectives and are thereby entitled to have conditions lifted from status. The lifting of conditions is an entitlement. If the conditions have been met then conditions must be lifted. I point this out for a reason and will now illustrate that reason with an EXTEREME example. The reason is that critical issues relating to any INA benefit request need to be placed, viewed and judged in their proper context.

    The Form I-829 asks about any new arrests or convictions since conditional status was granted. This information is peripheral to the matter at hand in the I-829. All that the alien needs to do to get conditions lifted is meet the statutory requirements for the lifting of conditions, that is all. If that individual should also happen to be convicted of an aggravated felony, that would usually not be a legally valid reason to refuse to lift conditions . An aggravated felony would then serve as a basis for an NTA seeking to remove the unconditional LPR from the U.S. on criminal grounds of deportability (removal) INA § 237(a)(2)(A)(iii) and perhaps something else depending on the nature of the crime (controlled substance, CIMT, terrorism, espionage, etc...). However, these separate and distinct issues and contexts should not be confused with each other. It is analogous to the meaningless approval of an I-130 for certain spouses of USCs. While they might be validly married and truly in love, the U.S. will not give an Immigrant Visa to an axe murderer even if the I-130 is approved. Think about it!

    That's my two-cents, for now.


    About The Author

    Joseph Whalen is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.


    The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.
    Posting comments is disabled.

Categories

Collapse

article_tags

Collapse

There are no tags yet.

Latest Articles

Collapse

  • Article: Birthright Citizenship Is Not A Legal Assumption; It
    ImmigrationDaily
    Last week on Fox News, Tucker Carlson said,
    08-21-2018, 01:24 PM
  • Blogging: Trump's "National Security" Abuses: First, Muslim Ban; Next, Security Clearance Revocation.. By Roger Algase
    ImmigrationDaily
    Trump's "National Security" Abuses: First, Muslim Ban; Next, Security Clearance Revocation. Trashing Immigrant Rights Endangers Freedom of All Americans.

    CNN reports on August 21 that 175 former US officials have denounced Donald Trump for revoking the security clearance of former CIA director John Brennan for speaking out in opposition to Trump.

    https://www.cnn.com/2018/08/20/polit...ent/index.html

    Presidential use of "national security"
    ...
    08-21-2018, 12:54 PM
  • Article: The EB-5 Immigration Program and the Investors Process By H. Ronald Klasko
    ImmigrationDaily

    If you are having difficulty viewing this document please click here.

    08-20-2018, 08:15 AM
  • Article: Immigration Judges’ Union Fights for Judicial Independence By Karolina Walters
    ImmigrationDaily
    Immigration Judges’ Union Fights for Judicial Independence by Karolina Walters The National Association of Immigration Judges (NAIJ), the union that represents the nation’s immigration judges, is challenging the government’s decision to remove an immigration judge from a well-known case and replace him with a judge who immediately ordered the immigrant in the case deported. NAIJ’s grievance addresses the treatment of one immigration judge, but its resolution will have implications for judicial independence throughout the entire immigration court system. The grievance was filed on behalf of Philadelphia-based immigration judge Steven A. Morley, who was presiding over the case of Mr. Reynaldo Castro-Tum. Castro-Tum’s case rose to national importance earlier this year when Attorney General Jeff Sessions chose to refer the case to himself to reconsider the Board of Immigration Appeals’ previous decision in the case. In reconsidering the decision, Sessions effectively eliminated judges’ use of administrative closure, a docket management tool. Sessions sent Castro-Tum’s case back to Judge Morley, noting that the immigration court order Castro-Tum removed if he did not appear at his next hearing. Castro-Tum did not appear at the next hearing. However, Judge Morley continued the case to resolve whether Castro-Tum received adequate notice of the hearing. Due process requires, at a minimum, that an individual be given notice of proceedings and an opportunity to be heard by a judge. But before the next hearing could take place, the Executive Office for Immigration Review (EOIR) replaced Judge Morley with an Assistant Chief Immigration Judge who ordered Castro-Tum removed when he did not appear at court again. In their grievance, NAIJ asserts that the decision to remove Judge Morley from Castro-Tum’s case and reassign many other cases from his docket resulted in unacceptable interference with judicial independence. The grievance specifically claims that EOIR’s actions violate immigration judges’ authority under the regulations to exerci...
    08-17-2018, 11:12 AM
  • Article: Indirect Refoulement: Why the US Cannot Create a Safe Third Country Agreement with Mexico By Sophia Genovese
    ImmigrationDaily
    Indirect Refoulement: Why the US Cannot Create a Safe Third Country Agreement with Mexico by Sophia Genovese The Trump Administration is seeking to create and implement a safe third country agreement with Mexico . Under this agreement, asylum seekers arriving at the US border who have travelled through Mexico would be denied the ability to file their asylum claims in the US. Such an agreement would trample on the rights of asylum-seekers, violating both international and US asylum law. In particular, the US would be violating the international principle of non-refoulement , which provides that no State “shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened,” where Mexico has a proven track record of being anything but safe for asylum seekers . The US has also codified Article 33(1) of the Refugee Convention into Section 208(a)(2)(A) of the Immigration and Nationality Act (INA) which provides that it will not return an asylum seeker to his or her country of origin, but may, at the determination of the Attorney General, remove the asylum seeker to a “safe third country… where the [asylum seeker] would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection.” Although Mexican officials have not yet indicated whether they would sign a safe third country agreement with the US, asylum advocates should proactively seek to prevent such a devastating policy with a country that lacks adequate asylum protections. As reported by Human Rights First and Amnesty International , 75 percent of asylum seekers apprehended and detained by the National Institute of Migration (INM), the Mexican immigration enforcement agency, were not informed of their right to seek asylum. Even if asylum seekers are able to make their claims, only 30% of the asylum proceedings are ever concluded , and even fewer are granted, leaving many bona fide asylum seekers stranded without a resolution. The treatment of unaccompanied minors’ asylum claims in Mexico are even more dismal. Of the 35,000 minors apprehended by the INM in the first half of 2016, only 138 were able to apply for asylum , of which only 77 were granted protection. Beyond the failing asylum system in Mexico, asylum seekers are also in extreme danger of kidnapping, murder, rape, trafficking, and other crimes by INM officers and civilians. A safe third country agreement with Mexico would violate the United States’ international obligations under the 1967 Optional Protocol to the Refugee Convention, to which we are a signatory, which adopts by incorporation the obligations outlined in the 1951 Refugee Convention, to which the US is not a signatory. Take the example of an asylum-seeker, Mrs. H, who is fleeing politically-motivated violence in Honduras. Her husband, Mr. H, was a vocal political activist who opposed the National Party and members of the Honduran government. Mr. H began to receive death threats due to his political beliefs and reported such threats to the authorities. The authorities, however, di...
    08-16-2018, 02:32 PM
  • Article: Flawed Statistics Undermine USCIS/ICE/SEVP’s Restriction of D/S for Unlawful Presence By Eugene Goldstein, Esq.
    ImmigrationDaily

    Flawed Statistics Undermine USCIS/ICE/SEVP’s Restriction of D/S for Unlawful Presence

    by


    On August 9, 2018 USCIS published a “Policy Memorandum” restricting the 20-year-old calculation of Duration of Status (D/S) for F-1, J-1 and M-1 entrants (and their derivative families). https://www.uscis.gov/sites/default/...immigrants.pdf

    USCIS also published an announcement (hereinafter “announcement”) “USCIS Issues Revised Guidance on Unlawful Presence for Students and Exchange Visitors https://www.uscis.gov/news/uscis-iss...hange-visitors , and a general discussion “Unlawful Presence and Bars to Admissibility” ...

    08-15-2018, 12:57 PM
Working...
X