Rules Stretched as Green Cards Go to Investors

http://www.nytimes.com/2011/12/19/nyregion/new-york-developers-take-advantage-of-financing-for-visas-program.html?_r=1&scp=1&sq=eb-5&st=cse

http://www.nytimes.com/2011/12/27/opinion/million-dollar-investor-visas.html?scp=2&sq=eb-5&st=cse

The above linked article and opinion in the New York times addresses an issue that has arisen more frequently as the benefit of the EB-5 program has grown: the "gerrymandering" by States of population tracts so that the foreign investment generated by the EB-5 program is directed to specific projects in specific areas.

Targeted Employment Areas are determined by a state body that certifies that the area where the EB-5 investment or regional center project is located has an unemployment rate 150% higher than the national average. Legislation creating the program did not specify the criteria for determining whether an area is a high unemployment area.

In the EB-5 context, pertinent part of the statute states:

(ii) In the case of a high unemployment area:

(A) Evidence that the metropolitan statistical area, the specific county within a metropolitan statistical area, or the county in which a city or town with a population of 20,000 or more is located, in which the new commercial enterprise is principally doing business has experienced an average unemployment rate of 150 percent of the national average rate; or

B) A letter from an authorized body of the government of the state in which the new commercial enterprise is located which certifies that the geographic or political subdivision of the metropolitan statistical area or of the city or town with a population of 20,000 or more in which the enterprise is principally doing business has been designated a high unemployment area. The letter must meet the requirements of 8 CFR 204.6(i).

As it stands, the New York State Department of Economic Development determines, or defines, a Targeted Employment Area within New York State. There are areas of Manhattan, especially the diamond district and area surrounding the Brooklyn and lower Manhattan waterfronts, mentioned in the above article do not appear to be areas of high unemployment upon first glance. Is the state, then, violating the spirit of the law in focusing on areas these areas for development?

In this blogger's opinion, the answer is no. First, there is no phohibition against combining census districts to create a Targeted Employment Area. There is also no "one size fits all" method for determining such an area. New York City and Omaha, Nebraska, for instance, although cities, are not the same. Their populations are distributed differently and their needs for economic development are different. Therefore, aplying a blanket definition of a targeted employment area for both states would not make sense. Restricting the method of determining a Targeted Employment Area, as the articles suggest, also may not be in the spirit of the law. The goal, after all, is economic development.


Would it be better to limit what constitutes a targeted economic area to USCIS?

No. In the New York examples mentioned, the census tracts that are combined do include a large number of areas of high employment. The map referenced above also includes both commercial, residential and former industrial areas that form a coherent whole: the lower Manhattan waterfront. The areas are connected by bridges, tunnels and subway lines. People live, play and work in the outlined areas. A person living in the Farragut house may be one of the ten employees required by the program.

Taking the Nebraska New York example above a step further, it is bad idea to apply a one size fits all model for determining what constitutes a Targeted Employment Area. The United States covers a large, diverse land mass. It is divided into thousands, if not millions of smaller geographic units. Some are densely populated; others are sparse. Economic development requires a diversity of strategies applied carefully to achieve the maximum result: jobs for workers in the United States. Creating a targeted employment area that includes higher and lower income census areas may be exactly what is needed to generate the investment necessary to foster economic growth.

If you are interested in the EB-5 program, feel free to contact me. My information is below:
Robert J. Maher, Esq.
Law Office of Robert J. Maher
52 Duane Street, 7th Floor
New York, NY 10007
Tel. (212) 939-7548
Fax. (212) 732-6323
Skype Phone: 917-720-3526
Skype User name: RMaher2
website: https://www.RMaher@RobertMaherLaw.com

Which EB-5 Regional Center Should I choose for my investment?

A potential investor should consider a host of variables when choosing an EB-5 Regional Center. In short, an investor has to do his or her due diligence. Below is a short list of some questions an investor might consider:
1) How many I-526 petitions have been filed by investors in the Regional Center and approved by USCIS? A successful Regional Center will have a large number of approvals.
2)How many I-829 peitions have been filed by the Regional Center and approved by USCIS? This is a very important measure of the success of the Regional Center because an approved I-829 removes the conditions on an investor's conditional green card.
2) What is the business structure of the Regional Center? Limited Liaibility Partnership may offer the most flexibility for an investor.
3) Are the Regional Center's projects loan based or equity based? This may be important to the investor because whether the Regional Center is loan based or equity based may determine the ease with ehich an investor may withdraw his/her money at the end of the investment period.

USCIS: A Work in Progress: Towards a New Draft Policy Guiding EB-5 Adjudications

USCIS recently released this draft memorandum regarding the EB-5 program. It is a good introduction to the EB-5 process from beginning to end. It answers many of the questions potential investors may have regarding the process. I have attached it post it in its entirety on this blog.

http://www.uscis.gov/USCIS/Outreach/Feedback%20Opportunities/Draft%20Memorandum%20for%20Comment/EB_5_Adjudications_Policy3.pdf



Please direct any questions to your New York Immigration EB-5 attorney at RMaher@RobertMaherLaw.com, 212-939-7548

What are the benefits of investing in an EB-5 Regional Center?

There are some advantages to investing in a Regional Center as opposed to applying for an EB-5 visa by investing in a new or troubled business. Investing in Regional Center provides two main benefits. First, the Regional Center Program has a less restrictive job creation requirement because it permits the use of indirect jobs towards the requirement that the investment create ten jobs. Second, Regional Centers require less day to day involvement on the part of the investor. The investor usually needs to live in the same location as a commercial enterprise that is not part of a Regional Center because the investor needs to manage the day to day operations of the commercial enterprise.

A potential investor should consult an attorney before beginning the EB-5 process. If you have any questions, please feel free to contact me, your New York EB-5 Attorney, at RMaher@RobertMaherLaw.com. My phone number is 212-939-7548, or look for me on Skype: rmaher1

Can a Chinese investor apply for an EB-5 visa? The government only permits Chinese people to transfer fifty thousand dollars out of the country each year.

Yes. Chinese investors can participate in the program, and it is very popular. Since the government of China has export controls on currency that permit Chinese citizens to transfer no more than an equivalent of fifty thousand dollars per year out of the country, EB-5 investors use several methods to transfer money out of China, and there are several questions about whether some of the methods utilized are permitted.

Can I transfer money through friends?
Yes. Many investors open a checking account in Hong Kong or Singapore. They then divide the five hundred thousand dollar investment into ten fifty thousand dollar portions and ask ten friends each to transfer the money to their Hong Kong account.

Can I open an account overseas and have a friend transfer money from her account to my account?
Yes. this method has been utilized by investors. This method requires a friend with an overseas account and an account in China. The investor transfers five hundred thousand dollars to the friend's Chinese account. The overseas friend then transfers five hundred thousand dollars from his/her account to the investor's overseas account.

The key to transferring funds is to document every transfer very carefully. USCIS looks at the source of investor's funds very seriously. It it important that the investor be able to trace all transfers.

Please feel free to contact New York Immigration Attorney Robert J. Maher, Esq. with any questions: http://www.robertmaherlaw.com

What is the difference between a Regional Center and the traditional EB-5 program?

The EB-5 program gives the investor two options: invest in a regional center or apply for conditional residence through the traditional EB-5 program. The Regional Center option is a Pilot Program that was created by Congress in 1992 and expires on September 30, 2011. USCIS defines a regional center as “any economic entity, public or private, which is involved with the promotion of economic growth, improved regional productivity, job creation and increased domestic capital investment.”
In order to gain regional center status, the Regional Center organizers have to submit a proposal to USCIS, supported by economically or statistically valid forecasting tools, demonstrating its plan for the following:

• How the regional center plans to focus on a geographical region within the United States. The proposal must explain how the regional center will promote economic growth in that region.
• How, in verifiable detail (using economic models in some instances), jobs will be created directly or indirectly through capital investments made in accordance with the regional center’s business plan.
• The amount and source of capital committed to the regional center and the promotional efforts made and planned for the business project.
• How the regional center will have a positive impact on the regional or national economy


The “traditional” EB-5 program is a little different. In this case, the immigrant investor invests in a new commercial enterprise, one that was established after November 29, 1990, or prior to November 29, 1990 that is being reorganized or restructured in such a way that a new commercial enterprise results or expanded that there is a forty percent increase in the net worth or in the number of employees. This definition does not include noncommercial activity such as owning and operating a personal residence.

Under the traditional EB-5 program, the investment must create at least ten full-time jobs within two years of the investor’s admission into the United States as a conditional resident. Unlike the Regional Center, the jobs have to be created directly. Indirect job calculation is not permitted.

Please feel free to contact New York Immigration Attorney Robert J. Maher, Esq. with any questions: http://www.robertmaherlaw.com

What is an EB-5 Visa?

What is an EB-5 visa?
In short, the EB-5 visa is an investor visa whereby in exchange for an investment of five hundred thousand or one million dollars, depending on the geographic are where the investment is made, the investor and his or her immediate family is eligible for a conditional green card if several statutory requirements are met. The statutory requirements for the EB-5 visa can be found under section 203(b) (5) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1153(b) (5). One year and nine months after receiving conditional residence status, the investor files Form I-829, “Petition by Entrepreneur to Remove Conditions.” If the petition demonstrates that the investor has met the requirements of Section 203(b) (5), conditions are removed and the investor becomes a permanent resident.

Please feel free to contact New York Immigration Attorney Robert J. Maher, Esq. with any questions: http://www.robertmaherlaw.com