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    Published on 12-07-2015 01:56 PM

    EB-5 Program Regional Centers Oppose Being Compliant with Federal Labor Laws


    As we inch closer to meaningful EB-5 reform, some regional centers, and related groups, in opposition have focused on one sentence of the draft bill:

    (VII) a certification that the regional center has policies and procedures in place that are reasonably designed to ensure that the regional center and any associated new commercial enterprises and job-creating entities comply with Federal labor laws.

    When I first heard of the opposition, I was shocked. After all, the EB-5 program is a JOB CREATION program that is supposed to benefit AMERICAN ...

    Published on 12-07-2015 01:50 PM



    Although the State Department Visa Bulletin announced dual dates on September 9, 2015 – a filing date and a final action date – effective October 1 2015, the government has yet to clarify how these dates protect a derivative child from aging out (turning 21) under the Child Status Protection Act. If a derivative child turns 21, the child cannot automatically obtain permanent residency status with the parent, and thus the CSPA freezes the age of a child below 21.

    The new filing date in the Visa Bulletin allows for the early filing of I-485 adjustment of status applications if eligible applicants are in the United States and the filing of visa applications if they are outside the country. The final action date will be the date when green cards can actually be issued.  The filing date thus allows for the early submission of adjustment applications prior to the date when green cards actually become available. Similarly for those who are outside the United States and processing for an immigrant visa overseas, the filing date should allow applicants to submit the DS 260 immigrant visa application. 

    Prior to the October 2015 Visa Bulletin, the cut-off date was based on the government’s ability to issue a green card during that month.  While there has been no official guidance, and many of the practice advisories issued make scant reference, it is important that we advocate that the age of the child also be protected under the CSPA at the time that the filing date becomes current for the applicant. A child ceases to be considered a child upon turning 21, and can no longer immigrate as a derivative with the parent, especially when the parent is likely to be caught in the backlogs. It is thus important that the CSPA is made applicable to protect the child’s age at the time of the earlier filing date. This will also promote legal consistency and harmony with respect to the broader definition of visa availability in the new visa bulletin. [Readers are cautioned not to expect that this will happen, and the whole purpose of this blog is to advocate that children get CSPA protection under the new visa bulletin.] 

    Notwithstanding the abrupt retrogression of the filing dates on September 25, 2015 that were first announced on September 9, 2015, thus impeding the ability of thousands who were ready to file adjustment applications on October 1, 2015,  the dual date system still exists, albeit not as advantageously as before. The Visa Bulletin has been further undermined after the USCIS was given authority to determine filing dates for purposes of filing adjustment applications. One has to now also refer to http://www.uscis.gov/visabulletininfo to determine whether adjustment applicants can use the filing dates each month established by the State Department in the Visa Bulletin. For the first two months in 2015, October and November,  the USCIS indicated that the filing dates could be used, but for December 2015, the USCIS abruptly announced without explanation that only the final action date ...
    Published on 12-07-2015 01:45 PM

    Proposed Effective Dates in EB-5 Reform Bill


    Published on 12-07-2015 01:17 PM

    A Modest Proposal: Use the EB-5 Program to Cut the National Debt


    The heart of the immigrant investor (EB-5) program is scheduled for termination or renewal on December 11; if it is kept alive at all, it should be converted to a scheme that reduces the national debt by $10 billion a year.

    Currently the program, which causes the admission of 10,000 investors and family members each year, serves as a conduit for money from rich Chinese (who dominate the program) to rich Americans. It provides very low ...

    Published on 12-04-2015 12:57 PM

    Path America Regional Center and Giving Innocent Investors a Way Forward


    On November 20, 2015, USCIS issued a Notice of Intent to Terminate the Path America SnoCo regional center. USCIS seeks to terminate the regional center based on the fact that in light of the SEC’s allegations of fraud and misappropriation of funds, it no longer serves the interests of the program.

    In the notice, USCIS claims that the regional center principals misappropriated or diverted funds from the purposes outlined in the business plan of the Path America Farmers Market project, and the regional center failed in its oversight responsibilities for allowing the misuse of the funds. USCIS based its allegations on SEC allegations and admissions ...

    Published on 12-04-2015 12:13 PM

    Letter Sent to the House and Senate Judiciary Committee Leaders: Time is now for Reform & Long Term Re-Authorization of EB-5


    Published on 12-04-2015 10:37 AM

    The EB-5 Revolution has Begun


    "God forbid we should ever be 20 years without such a rebellion", said our founding father Thomas Jefferson. By all accounts, the EB-5 program is about 5 years overdue. The EB-5 program has come to a moment of truth in its quarter century history. The program has done much good, and some bad things have occurred in its name. At an increasing rate over the last several years, the program has started to forget its roots, as a job creation program, to become a small part of high-end large real estate project finance in a few prime cities in America. This is not the fault of the real estate developers ...

    Published on 12-03-2015 03:03 PM

    Is General Communication at Conferences or on Websites Okay Under the Regulation S Exemption?


    Moderator: KURT REUSS

    We have a conference coming up in Dallas, Texas this month where there will be a number of booths talking about their EB5 offerings. Jackie, would you imagine that all of those booths would be exclusive Reg D offerings, or are they going to be limited to what they can say at the booth?

    Jackie Prester: My hope would be that reps in the booth will limit what they say. In the SEC precedent, the word “offer” is construed very, very broadly. It's not going to be limited to "Do you want to buy a security?" It will be much broader in scope; essentially the SEC would view conditioning the market to prepare for an offering of securities as an offer.


    To the extent that there will be a conference and booths or what have you, the discussions really ought to be, in general terms, about the projects themselves, and not the offerings of the securities at all. The discussion should not be about investing in a particular project or otherwise geared toward an investor audience. The general projects available out there in the EB5 world are pretty standard.

    Arguably, if the SEC were to take a really conservative approach, the marketing of projects themselves could be deemed an offer of securities since they're tied to the actual offering process. To my knowledge the SEC hasn't spoken on that issue.

    Kurt Reuss: I recall reading a no action letter with the euromarket that the SEC referred to “arousing interest.” I think they used that in replacement of "an offer", or am I misunderstanding that?

    Robert Cornish: No, “arousing interest” are the catch words that the SEC used in the no action letter on Reg S, called europerspectives.com that was issued in 2004.

    Regarding an ...

    Published on 12-03-2015 12:14 PM



    Published on 12-02-2015 02:16 PM

    Update: EADS & Accepting Job Promotions Post I-140 Approval is Soon Going to Be a Reality


    In August 2015, we had indicated through one of our Articles, KEEP HOPES ALIVE: EADS & ACCEPTING JOB PROMOTIONS AFTER AN I-140 APPROVAL IS SOON GOING TO BE A REALITY, that the Department of Homeland Security (DHS) is working on a proposed rule that will allow certain Beneficiaries of an approved Immigrant Petition for Alien Worker (Form I-140) to obtain an Employment Authorization Document (EAD), and also permit them to engage in natural career advancements by accepting job promotions. We had also projected that the proposed rule, or Notice of Proposed Rule Making (NPRM) was likely to be released during the First Quarter of DHS’ New Fiscal Year, which commenced on October 1st, 2015.

    As projected earlier by us, allowing minor deviations, it is highly likely that the proposed rule or NPRM is going to be published in the Federal Register for Notice and Comment in next 60 to 90 days.

    This next level of projection is based on two specific developments. First, on November 5th, 2015, providing an update on the implementation of President Obama’s Executive Action announced last year, DHS Secretary, Jeh Johnson, during USCIS’ Ombudsman Fifth (5th ) Annual Conference in Washington, D.C., confirmed that the “DHS is working on a proposed regulation and guidance to support high-skilled businesses and workers by enabling these businesses to hire and retain talented foreign workers while providing these workers with increased flexibility to advance with current employers or seek new opportunities elsewhere.”

    In addition, the submission of a proposed draft ...

    Published on 12-02-2015 11:35 AM

    Bernie Sanders, A Fair and Humane Immigration Policy



    Bernie Sanders has outlined "A Fair and Humane Immigration Policy," which is getting positive attention from, among others, the New York Times and the Washington Post.   The broad principles of the plan are as follows:

    Through legislation and executive action, Senator Sanders will implement a humane and secure immigration policy that will:  

    • Dismantle inhumane deportation programs and detention centers;
    • Pave the way for a swift and fair legislative roadmap to citizenship for the eleven million undocumented immigrants;
    • Ensure our border remains secure while respecting local communities;
    • Regulate the future flow of immigrants by modernizing the visa system and rewriting bad trade agreements;
    • Enhance access to justice and reverse the criminalization of immigrants;
    • Establish parameters for independent oversight of key U.S. Department of Homeland Security (DHS) agencies.

    The plan provides further detail on each of these areas and strikes a very different tone on immigration than the Republican presidential candidates.  The Latin Times calls Sanders' immigration proposal more progressive and detailed than Hillary Clinton's. 

    Some of the details of Sander's immigration plan jumped out at me as worthy of careful consideration.  He proposes, for example, to expand DACA and DAPA and end immigrant detention by for-profit private entities.  Here are a few proposals that jumped out at me as worth discussion and something of interest to immigration law professors:

    Protect Immigrant Workers Exercising their Rights. Legislatively, a Sanders Administration would establish a whistleblower visa for workers reporting labor violations. Administratively, Senator Sanders would establish an affirmative process for these individuals to request deferred action. Many employers regularly abuse immigrant workers knowing employees will not hold them accountable for fear of deportation. 

    Decouple Local Law Enforcement from Immigration Enforcement. In too many instances, deportation programs like the Priority Enforcement Program (PEP), the 287(g) program, and the Criminal Alien Program have unjustly turned local law enforcement officials into immigration officers. Racial profiling and the criminalization of communities of color form the foundation of these deportation programs which will be eliminated under a Sanders Administration.  As President, Senator Sanders will implement the recommendations of President Obama’s Task Force on 21st Century Policing to ...

    Published on 12-02-2015 11:06 AM

    Does December 11 Matter? Let us start with the answer: Probably not.


    Here’s why.

    First, I’ll focus on whether December 11 matters for investors. It will only matter if (a) Congress passes a new law that increases the minimum investment amount, changes TEA definition, changes job creation methodology or otherwise affects the approvability of an investor’s petition; and (b) Congress sets an effective date of the new law at December 11, 2015.

    The chances that Congress will pass a new law that will, at the very least, increase the investment amount and change what qualifies as a TEA are very good. The chances that it will do so before December 11, 2015 are increasingly remote. Rather, it is much more likely that Congress will extend the regional center EB-5 program for ...

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