Visa Lawyer Blog

Articles Posted in EB5 Investor Visas

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Yingfei Photo
It is our pleasure to introduce our readers to Associate Attorney Yingfei Zhou, Esq who joined our firm in 2012. Attorney Zhou is an active member of the California State Bar, the New York State Bar, and the American Immigration Lawyers Association (AILA).

Ms. Zhou practices primarily on employment-based and investment-based immigration law. Ms. Zhou has experience in various aspects of business immigration, including employment-based permanent residence and nonimmigrant visas, as well as marriage-based immigration and citizenship matters. Specifically, she has provided counsel to clients in relation to employment in specialty occupation, nonimmigrant NAFTA professional visa, individuals with extraordinary ability and achievements, nonimmigrant trainee or special education exchange visitor visa, religious worker visa, E-2 treaty investor visa, waivers, applications for adjustment of status, employment certification (PERM) applications, motion to reopen/reconsider, re-entry permit, visa interviews, as well as extensive EB-5 investment immigration work.

Ms. Zhou received her Bachelor’s degree in Law (LL.B) from Zhejiang University, one of the top universities in China. She graduated with distinguished honor awarded by the Department of Education of Zhejiang Province and was editor-in-chief of law review of her law school in China. She subsequently attended Thomas Jefferson School of Law in San Diego, CA and obtained her Master’s degree in Law (LL.M.). Prior to joining the Law Offices of Jacob J. Sapochnick, Ms. Zhou has practiced in China for two years.

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President Obama’s executive action announced on November 20, 2014 fell short in many ways than one for many people residing in the United States—both legally and illegally. Though a marginalized few have been allowed to come out of the shadows, some of the world’s best and brightest have been completely ignored by the executive action altogether. The United States would be quite a different place without our hard working immigrant population and without our foreign born innovators, movers, and shakers.

Obama’s announcement on November 20th notably left out any indication that the creation of a more expedient and efficient system would be considered— through which highly skilled and highly capable foreign workers would be able to more easily attain permanent residency and visas. Industry leaders in areas such as the Silicon Valley, seeking to employ such highly skilled and highly capable foreign workers for their startup companies, have expressed their concerns, forming groups such as FWD.us, albeit with the knowledge that Congress must act in order for an all-encompassing solution to be reached.

Though Obama’s speech shed little light on the topic, a memorandum released by the U.S. Department of Homeland Security following the speech is much more informative. The memorandum announces that inventors, researchers, and founders of start-up enterprises who do not qualify for a national interest waiver, but who have been awarded what is considered ‘substantial’ financing by a U.S. investor OR who ‘hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting edge research’ can attain parole authority under section 212(d)(5) of the INA,6 on a case-by-case basis after being assessed by the DHS. Possessing parole in this situation would authorize extraordinary inventors, researchers, or start-up entrepreneurs to temporarily conduct their research or development of innovative ideas or their business while in the United States.

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The 27th AILA (American Immigration Lawyer Association) California Chapter Conference was held between the 13th and 15th of November 2014 at San Jose, California. Attorney Yingei Zhou, Esq. was in attendance on behalf of our law firm. The conference concentrated on several trending topics such as status of comprehensive immigration reform, consular processing and updates with border posts in Mexico and Canada, driver’s licenses for undocumented workers, unaccompanied alien children (UAC), H-1B/L-1A/O-1/EB-1 adjudications, federal litigation, and advanced family immigration issues, as well as staple subjects like evidentiary issues in removal proceedings and PERM applications.

This article provides you several important updates from the conference addressed at the conference, especially the government open forums with AILA practitioners, USCIS representatives, CBP officers, and San Francisco Asylum officers.

In the following weeks, we will post more articles to address the trends on each specific visa applications and immigration proceedings discussed in the conference.

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Start-up entrepreneurs who wish to come to the U.S. to open a business have several immigration options. It is important that you understand the requirements, benefits, and downsides of each and choose the one that best fits your situation.

B-1 Business Visa

A B-1 business visa is a non-immigrant visa issued to those who wish to enter the United States for a business purposes. You are eligible to apply for a B-1 visa if you want to consult with a business associates, participate in a required medical clerkship without any remuneration, embark on independent research which does not benefit any U.S. institution, or participate in educational, professional scientific or business conventions, seminars, or conferences.

The validity period for this visa will differ depending on your country of origin. If you are seeking entry into the U.S. for business reasons for the first time, you may be allowed to stay in the U.S. for a period of time long enough to enable you conduct your business. However, the maximum period of stay allowed per visit is 6 months. But you can also apply for another six-month extension if you needed. A B-1 visa can be used for multiple entries in so far as it has not expired.

There are certain tasks that you are and are not allowed to do while in the U.S. on a B-1 visa. If you are in the U.S. with a B-1 visa, you are allowed to negotiate business, discuss planned purchases or investment, solicit sales or investment, attend and participate fully in meetings, conduct business research, and interview and hire staff. You are not allowed to look for employment, run a business in the U.S., or to take part in sporting and entertainment events as a professional.

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On August 23rd the Chief of the Department of State’s Immigrant Visa Control and Reporting Division, Charles Oppenheim, made an important announcement regarding significant changes made to the EB-5 preference category. Oppenheim announced that for the first time since the creation of the EB-5 category, the EB-5 preference category would become unavailable to Chinese applicants for the 2014 fiscal years.

What does it mean for the EB-5 preference category to become unavailable? 

What the department means is that, the maximum number of EB-5 immigrant visas available to Chinese applicants for the fiscal year of 2014 have already been issued. Thus, there are no longer any available EB-5 immigrant visas for the 2014 fiscal year.

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You are a H-1B visa holder from a country with a backlogged employment based category and you are currently living and working in the United States. You have applied for permanent residence through your employer. You have been working for the same employer for years and have extensive experience in your field. Despite all of these factors, you are still waiting in line for your priority date to become current, and what’s more, your spouse has not been eligible to apply for their employment authorization due to the restrictions on their visa. What, if anything, can be done to receive your permanent resident card sooner?

Thousands of immigrants are in the same hypothetical situation. Comprehensive Immigration Reform is necessary not just for undocumented immigrants living in the United States, but also for such specialty workers who regularly contribute to our economy and society, but are stuck in limbo awaiting their permanent residency. Comprehensive immigration reform is also necessary because specialty occupation workers often run out of their H-1B status while they are in line for their priority date to become current. If the specialty occupation worker is married, chances are their spouse has not had the opportunity or privilege to legally obtain employment while the primary applicant has been in line waiting to adjust their status. Many immigrants who have found themselves in similar situations fear international travel due to the risk they may run in not being able to return to the United States.

Bypassing the Quota System

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The Chief of the Visa Control and Reporting Division at the U.S. Department of State, Charles Oppenheim, recently shared the expected projections for monthly and annual visa demand and Visa Bulletin projections regarding family and employment based green cards. It is important to note that these projections may be subject to change based on the reported or observed visa demand witnessed by USCIS and the U.S. Department of State.

Important developments to look forward to this year include significant advancement of EB-2 category for India and unmarried sons and daughters of LPR over 21 years old. On the other hand, several immigrant visa categories are expected to retrogress due to high demand, such as the category of spouses and children of LPR, EB-5 for Chinese nationals and EB-3 for Chinese nationals. The expected projections are as follows:

Family Based Second Preference 2A Worldwide (FB-2A) –Spouses and Children (under 21) of Permanent Residents:

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Since the year 1990, USCIS has administered the Immigrant Investor Program, better known as ‘EB-5’. The program was first launched by Congress with the goal of expanding the U.S. economy by encouraging job creation and capital investment through foreign investment. It has now become known for its Regional Center pilot immigration program, with the purpose of allocating certain EB-5 visas to investors in Regional Centers designated by USCIS. These Regional Centers support the goal of economic growth. Recently, the program director of the pilot immigration program, Nicholas Colucci, held a conference with EB-5 stakeholders assuring them that he is committed to revitalizing the program. This action by Colucci signals an interest in making the EB-5 process more efficient, transparent, and resourceful. First a brief overview of the EB-5 visa process:

General Guidelines:

  • Under section 203 (b)(5) of the Immigration and Nationality Act also known as INA, 10,000 EB-5 immigrant visas are allocated per year
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By Yingfei Zhou, Esq.

Q: How can I apply for EB-5 visa?

A: There are two requirements on foreign investors seeking a green card. First, you must invest sufficient funds in an approved project of your choice. Second, ten new full-time jobs must be created as a direct result of that investment. The investment must be either in a new business or an existing business and the investment will spur either a 40% increase in net worth or employees of the existing business.

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On December 3, 2012, USCIS Director Alejandro Mayorkas held a public engagement on the EB-5 Immigrant Investor Program. Director Mayorkas provided updates on creation of the separate office for administration of EB-5 Immigrant Investor program.

The EB-5 program has spurred the creation of tens of thousands of new jobs and the injection of billions of dollars into the U.S. economy since Congress created the program in 1990. Interest in the EB-5 program has grown exponentially in recent years, both from domestic project developers seeking capital and foreign investors who have the capital that can fuel economic growth. In the recent years, EB-5 immigrant investor program has grown a lot.

In the fiscal year 2012, USCIS approved more than triple the number of petitions approved in Fiscal Year 2009. USCIS has met the unprecedented growth and interest with a corresponding dedication of resources.

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