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The Boring Part of EB5

The Boring Part of EB5 . The Immigration Process. The Numbers. Every year, approximately 90% of individual I-526 petitions filed are regional center affiliated 1,955 petitions filed in 2010 in total In 2010, there were 1885 EB5 visas used In 2009, there were 4,218 EB5 visas used

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The Boring Part of EB5

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  1. The Boring Part of EB5 The Immigration Process

  2. The Numbers • Every year, approximately 90% of individual I-526 petitions filed are regional center affiliated • 1,955 petitions filed in 2010 in total • In 2010, there were 1885 EB5 visas used • In 2009, there were 4,218 EB5 visas used • In 2010, 89% of I-526 petitions were approved (1369 petitions filed) • In 2010, 83% of I-829 petitions were approved (274 petitions filed)

  3. EB5 Visa Usage by Country

  4. The Process in a Nutshell • File I-526 Petition • Investor obtains Conditional Green Card with a validity period of 24 months • At 21 months, investor files I-829, Petition to Remove Conditional Status • Approved, investor obtains unconditional green card • Eligible to naturalize after five (5) years of green card status • Denied, possible referral to deportation

  5. EB5 Requirements • Investor must invest or actively in the process of investing $500,000 or $1 million dollars in an enterprise • Investor must make a contribution of capital that is “at risk” • Capital invested must have been obtained through lawful means • Enterprise must create 10 full time jobs • Investment must be made in a “new commercial enterprise” or “troubled business” • Investor must be engaged in the management of the enterprise

  6. “Investment” and “Capital” • USCIS defines an investment to mean the contribution of capital. • No loan arrangements • Capital must be “at risk” • Capital can be • Cash or cash equivalents • Equipment, inventory or other tangible property • Loan secured by investor’s assets

  7. Actual Commitment of Capital • Simple transfer of money into the corporate account does not constitute commitment of capital. • Must have some meaningful action with the money • Escrow accounts with proper escrow agreements are permissible. • Unequivocal release of funds upon approval of I-526 or adjustment of status

  8. Source of Investment Money • Invested capital must have been obtained through lawful means: • Income • Business records or tax returns • Sale of house, business or other asset • FMV – third party valuations • Equity positions in existing businesses • Proof of dividends or certificates of stock • Be aware of OFAC for Iranian investors • Office of Foreign Assets Control (Dept. of Treas.)

  9. Job Creation • Ten permanent full time employees before filing I-826 • Direct, Indirect and Induced • No independent contractors • Full time means 35 hours a week • Job-sharing is allowed • Two or more employees share one FT job • As opposed to two part-time jobs

  10. I-526 Petition • Form I-526 • Due for revision in 2011 • Cover Letter summarizing Investor/Petitioner’s qualifications and eligibility for EB5 green card. • Supporting Documentation • Filing Fee of $1,500 made out to USCIS • G-28 (Attorney Representative Form)

  11. I-526 Supporting Documentation • Proof of Commercial Enterprise • Corporation documents • Business license • Proof of TEA designation • Investment • Source of money • Investment “at risk” • Job Creation • Comprehensive Business Plan

  12. I-526 Supporting Document, con’t • Investor’s management position • Statement of investor’s position and job description • Evidence petitioner is corporate officer

  13. I-829 Petition Process • Must file within 90 days before the expiration of conditional green card • If I-829 is not filed, green card status is automatically terminated • NTA will very likely issue • Two purposes of I-829 petition • Fraud detection and prevention • Compliance to the requirements of the EB5 program

  14. The 5 Statutory Reasons for Denial • Enterprise was established for sole purpose of evading U.S. immigration laws • Enterprise was not actually established • Investor did not actually invest and sustain capital into the enterprise • Investor’s capital was obtained through illegal means • Investor not otherwise conforming to requirements of EB5 program

  15. I-829 Petition • Form I-829 • Due for revision in 2011 • Copy of green card • Supporting Documentation • Filing Fee of $3,835 for primary investor • Additional $85 for each additional dependent family member • G-28 (Attorney Representative Form)

  16. I-829 Supporting Documentation • Commercial Enterprise was established • Investor actually invested the capital • Investor sustained the enterprise and the investment through the 24 month period • Investor created or can be expected to create within a reasonable time 10 full time jobs • Enterprise maintained the same number of existing employees as during the pre-investment level if enterprise was a troubled business

  17. Family Members in the I-829 Process • All family members included in the I-526 petition can be included in the I-829 even if: • Children are over 21 years old • Children have gotten married • Spouses have divorced • Dependent family members can have their conditional status removed only if USCIS removes conditional status of primary petitioner (investor)

  18. Adjustment of Status vs. Immigrant Visa (Consular) Processing • Adjustment of Status is the process for a foreign national who has legal entry into the United States to obtain a green card based on an approved petition of some type. • Adjudicated by USCIS (6-8 months) • Consular Processing is the process for a foreign national who is outside the United States to obtain an immigrant visa which is the DOS’ equivalent of the green card. • Adjudicated by DOS at the U.S. Consulate (7-9 months)

  19. Automatic Extension of LPR Status • Upon receipt of a properly filed I-829, Investor’s green card status is extended automatically until the petition is adjudicated • Travel is allowed • Employment is allowed

  20. Initial Document Collection • Indentifying information for primary petitioner and family members • Birth Certificates • Passports • Marriage/Divorce/Death Certificates • Government issued ID cards or family registries • Proof of Familial Relationship • Adoption papers

  21. Other Issues of Inadmissibility • Past Immigration Violations • Visa overstays • Fraud • Misrepresentations • Criminal Issues • Arrests and convictions • Affiliations to certain groups • Communist Party membership

  22. EB5 Case Processing Times • Form I-526 • Five Months – Target • Five Months – Current • Eight Months – Reality (based on JIT report) • Form I-829 • Five Months – Target • Six Months – Current • Six Months – Reality (based on JIT report)

  23. A Full Service Immigration Law Firm 10971 Garden Grove Boulevard, Suite DGarden Grove, CA 92843 800-997-7905 | minat@palmer-tran.com www.palmer-tran.com

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