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    Published on 11-06-2015 01:39 PM

    Liability Associated with EB-5 Marketing Materials


    Moderator: KURT REUSS

    Kurt Reuss: In looking at marketing materials from a number of regional centers there are some common elements we typically see in the larger offerings such as regional centers talking about their experience; the results they’ve gotten from previous projects; the fact that principal has been paid back to investors; the percentage of I-526 and I-829 approvals; the project’s description and highlights. 

    Sometimes we see marketing material that include information on the budget; loan amounts and both the senior loan and the EB5 loan. Developer equity is often in there; as is job cushion; the rate of return to investors and the term.

    Bob, is there anything in that list that strikes you as being something that you’d want to be cautious about?

    Bob Cornish: Certainly, results from previous projects and principal paid back to investors is, in my mind, probably the most prominent issue of those on this list, simply because there are so many prohibitions and guidelines regarding how you represent past performance, how you represent what the results may be from a certain strategy.

    One of the problems you have in the EB5 context versus traditional investment management vehicles is how do you actually measure performance? Is it the return on the investment? Not really since most investments are not designed to generate monetary return other than the return of principal and the green card. More importantly, how do you measure what a successful result is? If 97% of the people who went into the EB5 program were able to get their green cards, what does that mean? Who measures that and how has it been verified?

    Kurt Reuss: Let me be more specific; say it refers to the fact that a regional center has been a promoter of previous offerings and that regional center has raised whatever number they’ve raised from a number of projects. It’s the regional center making this claim so is there anything wrong with that? I mean, it’s not the issuer of this particular offering that’s making a claim.

    Bob Cornish: You have to remember that the regional center is essentially the manager of the investment vehicle and, to some degree, there’s obviously some corporate entity in between. In essence, you have to look at what the regional center says, almost in the same context as you would an investment manager for a mutual ...

    Published on 11-06-2015 01:32 PM

    The High Cost of Resettling Middle Eastern Refugees Given limited funds, relocation to the U.S. may not be the most effective way to help


    Published on 11-05-2015 02:36 PM

    DHS Secretary Johnson Discusses Border Security, Executive Action, Refugees and PEP



    On Thursday, Secretary Jeh Johnson of the Department of Homeland Security (DHS) addressed the 12th Annual Immigration Law and Policy Conference, covering a wide-range of topics, from border security to the new Priority Enforcement Program (PEP) to executive action and refugees.

    Secretary Johnson began his remarks calling attention to misinformation around border security. He clarified that the recent influx of unaccompanied minors and families arriving at the southern border is not an indicator of how secure the border is. Border apprehensions, which are used as the best indicator of attempted crossings, are currently at their lowest level in 40 years. Johnson stated that “building a wall across the entire Southwest border is not the answer,” noting that DHS has built 700 miles of wall “where it makes sense” along the Southwest border in compliance with the Secure Fence Act of 2006. In discussing the arrival of children and families, he acknowledged that violence in Central America continues to be a push factor that needs to be addressed. To that end, Johnson pointed to the one billion dollars requested in the Administration’s 2016 budget to support programs in Central America designed to address violence and other factors pushing people out of their home countries.

    Johnson also expressed disappointment that Congress has not passed legislation to address problems with the immigration system. He outlined the various executive actions announced in November 2014, including DACA plus, DAPA, the reprioritization of enforcement resources, promoting naturalization and various regulations that have been put out related to

    Published on 11-05-2015 02:13 PM

    L-1A New Office Cases - Why does the size of the lease matter?


    Quite frequently when a new L-1A office is in the process of being established in the U.S., the U.S. company, in order to save funds, leases only a few hundred square feet of office space. From a business point of view that seems reasonable - after all why lease more space than what you initially need?

    The problem, however, with this approach ...

    Published on 11-05-2015 02:01 PM

    Back of the line! - but is it legal?


    I’m going to explain how the immigration service has been unlawfully revoking the approval of petitions for nearly a quarter of a century. The impact of this unauthorized action on hopeful immigrants has been terrible, resulting in many thousands losing their place in the queue after having waited many years, and having to move to the back of a line in some cases decades long. To understand how this has happened, you’ll need to understand some basics of the immigration process.

    We have a petition process in the U.S., which allows U.S. citizens and permanent residents to file an immigrant petition for a close relative, and allows a U.S. employer to file a petition for an employee after certain prerequisites are met. The petition is a form that is filed with USCIS, the immigration agency, and when the petition is approved it is assigned a priority date which is the date the person got in line for one of the limited immigrant ...

    Published on 11-04-2015 12:30 PM

    Resettling Syrian Refugees Won’t Destroy the U.S. Economy


    As the U.S. plans to resettle 10,000 Syrians next year, many are eyeing the news with concern. Critics fear that refugee resettlement, though a compassionate program, will prove to be a far too costly endeavor. Yet economic evidence clearly suggests that, despite upfront costs, the long-run impact of resettlement will be neutral — and could actually trigger modest economic stimulus.

    From a humanitarian angle, it is hard to argue against resettling Syrians in the United States. Seven and a half million Syrians have been internally displaced, and 4 million externally displaced since 2011. Over 200,000 civilians have been killed since the onset of the civil war four years ago. Life expectancy has dropped by 20 years, and 80 percent of Syrians now live in poverty.

    Resettlement in the U.S. is one of the only ways to save refugees from a nightmare situation back home. 

    Fiscal conservatives, however, worry that an influx of refugees will dramatically strain government budgets and take jobs from American citizens. These are understandable concerns. Yet current case studies largely alleviate them, making the case against resettling refugees substantially weaker.

    Take Lebanon, for example. Since 2011, the country has taken in more than a million refugees. The 

    Published on 11-04-2015 12:15 PM



    TSC update I-485 link still available – The Texas Service Center reports that the TSC EB update email address,ebupdate.tsc@dhs.gov will continue to be available to provide updates for pending I-485’s. There had been some question as to whether the link was still available. The purposes for use are:

    · Notifying ...

    Published on 11-04-2015 12:08 PM

    EB-5 Visas and the Chinese Waiting Line — Ten Things I learned from Mr. Charles Oppenheim, Department of State (DOS), Chief, Immigrant Visa Control and Reporting


    On October 22, 2015, Mr. Oppenheim released critical information at the IIUSA conference in Dallas, Texas regarding the EB-5 program, including predictions as to the Chinese EB-5 waiting line

    In May 2015, the DOS announced the establishment of a cut-off date for the Chinese EB-5 category of May 2013, establishing a waiting line of 2 years for persons chargeable to the China quota. Remarkably, in the seven months from May 2015 to November 2015, the waiting line has not retrogressed once and has moved forward at the rate of about one month in every one of the 7 past visa bulletins. Fortunately this trend continues for the entire first quarter of Fiscal Year 2016 (October, 2015-December 2015), and slows down only slightly in the second quarter of FY 2016 (January 2016-March 2016).

    It may be noted Mr. Oppenheim has refrained from making predictions for the March 2016 EB-5 Visa Bulletin. This is despite the unprecedented surge in filings leading up to the critical September 30, 2015 sunset date when the program was extended for 10 weeks to ...

    Published on 11-03-2015 03:13 PM



    The approved immigrant visa petition, Form I-140, is truly precious, especially when foreign nationals caught in the employment-based second and third preference backlogs have to wait for several years before they can get their green cards. The beneficiary of an I-140 petition can also “port” to a new employer after an I-485 adjustment of status application has been pending for 180 days. Once the beneficiary has ported and is no longer in contact with the former employer, the USCIS may discover that it improperly approved the I-140 petition and revoke it. Only the prior employer may get notification, which may no longer care to contest the grounds for revoking the I-140 or this employer may no longer even be in existence. The hapless foreign national who is enjoying job mobility under INA 204(j) does not know any better, but this individual may no longer be able to obtain permanent residency.

    Should this foreign national beneficiary at least be notified about the I-140 being revoked and allowed to contest it? In 2009, the Ninth Circuit Court of Appeals in Herrera v. USCIS  answered in the negative by holding that the government’s authority to revoke an I-140 petition under INA 205 survived portability under INA 204(j). Since Herrera,  progress has been made in favor of the foreign national’s interest in the I-140 petition although it may have been filed by the employer. In 2014, the Eleventh Circuit Court of Appeals in  Kurupati v. USCIS held that a foreign national had standing notwithstanding the USCIS rule in 8 CFR 103.3(a)(1)(iii)(B) that precluded the beneficiary from challenging the revocation of an I-140.  The Kurupati court observed that the foreign national was clearly harmed as the revocation of the I-140 petition resulted in the denial of the I-485 adjustment application. The Court further observed that the notion of prudential standing, where a court may disregard standing based on prudence,  has been discredited by the Supreme Court in

    Published on 11-03-2015 03:06 PM

    Why Congress Should Eliminate the Term “Alien” from Federal Law



    Last week, Congressman Joaquin Castro (TX-20) introduced legislation to remove derogatory language describing noncitizens as “aliens” from federal law. The bill, known as the Correcting Hurtful and Alienating Names in Government Expression (CHANGE) Act, eliminates the use of this terminology in U.S. code and federal agencies’ materials and documentation.

    If enacted, the CHANGE Act would (a) change the term “alien” in federal law to the term “foreign national;” (b) strike the term “illegal alien” from federal law and replace it with the term “undocumented foreign national;” and (c) ensure all Executive Branch agencies do not use the terms “alien” and “illegal alien” in signage and literature.

    Current law utilizes the term “alien” to depict a person who is not a citizen or national of the United States. This language has been used in U.S. code since the Naturalization Act of 1790, which represented the country’s initial effort to establish the rules under which a foreign-born person could become a U.S. citizen. The term, however, has a markedly pejorative meaning.

    Etymologically, the word “alien” ...

    Published on 11-03-2015 01:28 PM

    Targeted Employment Areas: Where Are We Now


    As we approach the sunset of the temporary extension of the Regional Center EB-5 Program (the “Program”), there continues to be little consensus among lawmakers concerning how to define a Targeted Employment Area (“TEA”).[1] Currently, a TEA is defined as an area which, “at the time of investment, is a rural area or an area which has experienced unemployment of at least 150 per cent of the national average rate”.[2] Rural “means any area not within either a metropolitan statistical area (as designated by the Office of Management and Budget) or the outer boundary of any city or town having a population of 20,000 or more.”[3]

    A project’s TEA qualification matters because when an EB-5 project is located in a TEA the investment amount required is $500,000 per investor instead of $1,000,000. Clearly, TEA status is a major benefit to the EB-5 project seeking investors.

    There is much to discuss in properly defining a TEA. For example, the concept of “rural” seems simple and not problematic. However, that is not the case. For example, the EB-5 definition of rural requires that the project ...

    Published on 11-02-2015 02:48 PM



    Visa Gate – In our recent article series, “The New Visa Charts – A Primer in Interpreting Them, Historical Perspective, Use in Forecasting Demand, How the New System Will Work, and Their Additional Benefits to All,” this author expressed the hope that the Department of State would throw out its net as far as possible on its dates of filing charts for I-485 applications; and that better coordination ...

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