Waiting in the U.S. for the EB-5 Quota
Two things are certain about the EB-5 quota backlog for Chinese investors: It is long, and it is getting longer.
As a result of these two facts, it is more necessary than ever before for Chinese investors to have a strategy for being able to accomplish their goals in the U.S. until they are able to obtain their conditional permanent residence through their EB-5 investments.
We generally suggest that our clients consider four visa options: B-1/B-2, F-1, L-1 and E-2. This blog will compare and contrast these options.
This is the easiest option, but it is the most limited. The B-1 is a visitor for business, which allows the applicant to do business-related activities in the U.S. but not to be employed and earn a salary in the U.S. The B-2 is a visitor for pleasure, or a tourist, which allows the applicant to visit the U.S. but not to work or engage in business activities. Both of these visas can be obtained at a U.S. Consulate in China and can be issued for travel during a 10-year period. However, each entry to the U.S. is limited to the period given by the Customs and Border Protection officer at the airport. The maximum period of admission is 6 months, but the officer has the discretion to admit for a shorter period of time if it appears that the applicant’s purpose can be achieved in a shorter period of time or if he/she believes that the applicant may be not visiting the U.S. but rather living in the U.S. It is possible to apply for an extension of B status without leaving the U.S. However, the more time the applicant spends in the U.S., the more difficult it will be to reenter next time.
As a very general rule, USCBP officers are more likely to raise questions if the visitor has a history of spending more than 6 months per year in the U.S.
The B visa is appropriate for a parent coming to visit a student, who is studying in the U.S. However, it is not appropriate for a parent who intends to be with the child during the entire school year. Such a plan risks having the parent being denied on future reentry to the U.S.
A couple of points need to be made about the B-1/B-2 visa. The fact that it is 10 years does not mean that the Chinese national can spend 10 years in the U.S. It simply means that the Chinese national does not need to reapply for a visa until the end of 10 years.
Secondly, it is much better to obtain the B visa before the filing of an I-526 petition. The B visa requires proof that the applicant has a residence in China to which he intends to return at the end of the visit. The filing of an I-526 petition evidences an intention to live permanently in the United States. The tension between the temporary and permanent intentions results in a high rate of denial of B visa applications subsequent to I-526 petition filings.
The F-1 visa is for full time students. It allows the student to remain in the United States during the entirety of his full time studies, which could include multiple levels of education. The F-1 visa is generally not appropriate for attending a public secondary school. It may be used to attend a private school, bachelor’s degree program, or advanced degree program in the U.S. The F-1 visa cannot be issued to the parent of a student. An exception to that would be if the parent is himself or herself going to be a full time student.
In order to obtain an F-1 visa, the applicant must have an I-20 form issued by the school indicating that the applicant has been accepted into that school.
Upon the conclusion of studies, in some instances the student is able to remain in the United States for an additional 12 months to obtain “practical training.” With some employers, this can be extended to 29 months following the completion of the degree program.
The F-1 visa has the same “nonimmigrant intent” requirement as the B visa. This means that he/she must prove an intend to return to China. As a result, just as with the B visa, it is difficult to obtain an F-1 visa if the student has already filed an I-526 EB-5 petition. If the student has not filed such a petition but the parent has filed an I-526 petition, and if the parent is not yet resident in the U.S., the child may still be able to obtain a student visa.
The L-1, or intracompany transferee, visa allows an investor who owns a business in China, or who manages or is a key employee of a business in China to obtain a visa to work for or manage the U.S. branch office, subsidiary or affiliated company. The U.S. company must file and get approved an L-1 petition with USCIS in the U.S. The L-1 visa can be approved for 3 years with a possibility of one 2-year extension for a specialized knowledge employee and two 2 year extensions for a manager or executive.
Although this is a difficult visa to obtain, it has some particular advantages. The spouse of the L-1 can work in the U.S., and the child can study in the U.S. Another advantage is that the L-1 visa is a “dual intent” visa, meaning that is considered to be consistent with an I-526 immigrant petition. Therefore, the L-1 petition can be filed even after the investor has filed an I-526 petition or has an approved I-526 petition.
The child of an L-1 can only remain in the U.S. until the child becomes 21 years old. At that point, if he is studying in the U.S., he may be able to change from an L-2 to an F-1.
Normally, this visa category would not be mentioned in a discussion of visa options for Chinese nationals. The reason is that the E-2, or treaty investor, visa requires that the applicant be a citizen of a country that has an investment treaty with the U.S. China has no such treaty.
However, certain countries in the world have citizenship-by-investment programs, which enable Chinese citizens, through an investment in that country that is generally far less than an EB-5 investment, to obtain citizenship in that country. If the Chinese citizen obtains citizenship through investing in a country that has an investment treaty with the U.S., the E-2 option becomes available.
The E-2 requires a “substantial investment” in a business in the U.S. Unlike with EB-5, the “substantial investment” requirement does not contain an exact dollar amount. Rather, the investment must be substantial enough to enable the business to be viable and hopefully employ people other than the investor and his family. There is no requirement of any exact number of employees.
The E-2 visa applicant can work in his business, but does not have to work in the business. Rather, he can appoint someone to manage the business and simply oversee the manager as needed. The E-2 visa can be issued for 5 years (or lesser period of time in certain countries). However, even though the visa is valid for 5 years, each entry to the U.S. is limited to 2 years at a time. The E-2 visa can be extended indefinitely as long as the business continues to operate. Therefore, it provides the greatest possibility of being able to remain in the U.S. no matter how long the quota backlog for EB-5 extends.
As with the L-1, the spouse of an E-2 can work in the U.S.; and the child can study in the U.S. until age 21.
While the E-2 visa is not technically a “dual intent” visa as the L-1 is, it is not unusual for an E-2 visa applicant to be able to obtain visas and extensions despite the pendency of an EB-5 immigrant petition.
Applicants for B visas and F-1 visas generally do not need an attorney to complete the process. Applicants for L-1 visas and E-2 visas generally do require the services of a qualified immigration attorney.
This post originally appeared on Klaskolaw.com. © 2016 Klasko Law. All Rights Reserved. Reprinted with permission.
H. Ronald Klasko (Ron) is widely recognized by businesses, universities, hospitals, scholars, investors and other lawyers as one of the country’s leading immigration lawyers. A founding member of Klasko Immigration Law Partners, LLP and its Managing Partner, he has practiced immigration law exclusively over three decades. Under his leadership, the firm has been chosen every year for the last ten years by the highly regarded Chambers Global 2015 as one of the top five immigration law firms in the United States; Ron himself is recognized annually as being in Tier One of immigration lawyers by Chambers Global and U.S. News and World Report. In addition, he has been included in the highly regarded Best Lawyers In America for two decades and has also been repeatedly selected for inclusion in Lawdragon’s/Human Resource Executive’s list of The Most Powerful Employment Attorneys Guide. Who’s Who Legal in Corporate Immigration named him as the most highly regarded immigration lawyer in the world.