Non-immigrant visa waiver granted

If you are deemed by the US consulate to have committed visa fraud or misrepresentation, or other offenses that are barred from entering the United States, you may need a special waiver from the United States.

One of our clients recently received such waiver and he will be able to receive a non-immigrant visa to visit the United States.

This kind of waiver is easier to get compared with immigrant visa waiver(extreme hardship standard).

If you cannot get a non-immigrant visa due to a finding of fraud, misrepresentation or certain criminal convictions, please contact us to discuss your chance for a non-immigrant visa waiver.

Interesting 2016 Data about Immigration Court cases

Based on most recent released data,  Immigration courts in the United States received total of 328,112 new cases in 2016 and completed 273,390. 

San Francisco immigration court received 17,513 new cases, up 24%; Los Angeles court received 21,132, up 16%; NYC received 18,457, up 3%.

Respondents with legal representation increased every year since 2012, now stood at 61%.

Overall asylum grant rate dropped each year since 2012(56%); 2013(53%); 2014(49%); 2015(48%); and 2016(43%).

San Francisco immigration court granted 74% of its asylum cases; Los Angeles court 22%.

About 83% asylum cases were referred by Asylum Offices nationwide.

China born applicants enjoyed 35.56% of total asylum grant, or about 3103 cases and has remained top 1 country since 2012.

We represent clients in all stages of their immigration cases including in immigration court, Board of Immigration Appeals and Federal Court of Appeals.  Please check our website for more information at www.lawbw.com

Another EB5 fraud case

According to Law360, an Idaho man has agreed to pay the federal government nearly $8 million for allegedly misappropriating money from Chinese investors for personal use instead of investing it in the EB-5 immigrant investor program.

Serofim Muroff and his companies have agreed to pay disgorgement of $5,062,082 plus interest totaling $865,270 and a $2 million penalty, the agency said in a press release. Muroff is CEO of Blackhawk Manager and the Idaho State Regional Center and principal of ISR Capital and Equity Recap.

The SEC alleges Muroff raised more than $140.5 million in offerings to Chinese investors through Blackhawk Manager and ISR Capital with the intention of buying and developing luxury real estate in McCall, Idaho, and investing in gold mining ventures in Idaho and Montana.

If you invested in this Regional center, you are in trouble!

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Federal agents has raided this regional center and its related offices and persons on April 5, 2017(Victoria Chan and her father Tat Chan).

The US government searched the offices and homes of the people involved in this regional center in San Gabriel Valley(Los Angeles area). It is believed that at least 100 Chinese EB5 investors invested in this regional center's projects and some of them may have already received conditional green card.

The US government alleges that the father-daughter team used some of the company for their personal enjoyment and they did not put the money in the projects.  Some of its clients are on China's most wanted list. 

50 Chinese EB5 investors may lose their money and green cards

Per Law360(a legal publication and online legal news), The U.S. Securities and Exchange Commission has urged the Central District of California to rule against a husband and wife facing allegations that they misappropriated the bulk of $26.9 million raised in an EB-5 immigrant investor program, as the couple purportedly have not followed through on their promises as part of a possible settlement.

Because Charles Liu and Xin Wang failed to keep their promise to the SEC that they would transfer $26.9 million into the bank account of their attorneys by March 17 as part of a potential settlement of the case, the court should enter summary judgment against them, according to a status report filed Monday by the SEC, which is seeking that they pay a $65.7 million penalty.

The money was supposed to be stashed aside as the SEC worked internally to approve the proposed settlement and as final judgment and amended preliminary injunction filings were made in the court, according to the status report.

“Liu and Wang have ... had their chance to compensate the victims of their fraud,” the status report reads. “But they have not transferred any funds to defense counsel.”

In May of 2016, the SEC accused Liu and Wang of collecting the money from 50 Chinese investors for a cancer treatment center, but failing to use the money for the promised purpose.

Rather, Liu transferred approximately $12.9 million of the investor funds to three marketing firms in China — including one of which he is CEO and chairman — and deposited more than $7 million in his and his wife’s personal accounts, the SEC said. Less than $250,000 remains, the government alleged.

Another Chinese own/control Regional Center sued by SEC

The U.S. Securities and Exchange Commission on March 15, 2017 accused a Washington, D.C.-based development company and its president of using the EB-5 immigrant investor program to scam foreign investors out of $14.5 million.  This case was filed in Federal District Court in Washington, D.C.

Aero Space Port International Group Inc. and its president, Andy Shin Fong Chen, promised U.S.-resident hopefuls that their investments would go toward a development project linked to the EB-5 program, despite using the funds for luxury car payments, personal stock trading and operations for other companies, the SEC alleged.

From July 2011 to February 2015, Chen earned $14.5 million in investments and $1.8 million in fees from 29 investors, the SEC said.

Chen claims that none of his EB5 investors came forward to cooperate with the SEC.

The odds are against the EB5 investors to get green card or get their money back once the SEC files lawsuit.

The importance of correct legal advice

Recently I came across 3 clients where their lawyers did not advise them correctly and as a result, all of them have suffered severe consequences.

Case number 1, client's EB5 investor's visa had been approved but she needs to wait for the visa number.  She came to the US on B-2 visa last year with her husband and child.  The husband returned to China and she let her child enrolled in a public school.  When her 6 month B-2 stay was about to expire, her lawyer advised her to change to student visa and her child to F-2. her lawyer mailed her change of status application on the day of her I-94 expiration.  USCIS received the application 3 days after the expiration day.  In the meantime, her husband came to the US the second time one day before her I-94 expired.  At the airport, CBP officer found out his child was in a public school.  His visa was cancelled and he was forced to withdraw his application for admission.  Because of the late filing, client's change of status application will most likely be denied(USCIS is likely to deny the change of status anyway because she does not seem a bona fide student as she has been clearly here waiting for the EB5 immigration).  Facing this dire situation, client and her child had to leave the US immediately to avoid unlawful presence in the US, which will further jeopardize their chance to eventually come to the US on EB5 visas.  

Lessen from case number 1:  previous lawyer should not have advised client to stay 6 month on B2 visa, only to file change of status from B2 to F visa on the same day her I-94 expired;  should not suggest client's child to enroll in public school.  

 Case number 2:  Client applied for asylum and while she was waiting for interview, she married a US citizen.  Her previous lawyer knew client had visa fraud issue and waiver would be needed.  However, client did not have a good case for the waiver.  The best option for the client was to continue the asylum case.  However, the lawyer advised the client to withdraw her asylum case and only sought family immigrant visa option.  Now the USCIS denied the waiver and her I-485.  It was clear that client's waiver application is not strong at all.

Lesson from this case:   Client should have been advised the unlikely approval of the waiver and she should keep her asylum case going.

Case number 3: two young children came to the US under B-2 visa.  Their green card father had applied I-130 immigrant visa petition for them but the visa number was not current.  Near the I-94 expiration time, lawyer advised their mother to file change of status from B-2 to F-1; several months later, when their B-2 status expired, USCIS denied their change of status application.  Lawyer then advised them to file motion.  As of today the motion has been pending for more than 18 months.

After they filed the motion, their visa number became current and the lawyer filed I-485 for them.  A year later USCIS denied their I-485 Adjustment of Status application on the ground that when they filed I-485, they did not maintain lawful non-immigrant status.  It is without dispute when they filed I-485 their I-94 expired.  That lawyer mistakenly thought if they had a motion to reconsider a denial would somehow make their status lawful in the US.

Lesson from this case: To file I-485 you must maintain lawful status(except for immediate relatives of US citizen).  If your I-94 expired, even if you filed for extension of stay or change of status, unless your application is approved and you file I-485 before your new status expires, you may not file I-485(another exception is for employment based first to 4th preference cases, you may have less than 6 month "grace period" to file I-485.  An appeal or motion will not save you unless the appeal or motion succeeds.

One of the lawyers in these cases has been practicing immigration law law for close to 30 years.   The other two are relatively new.  

How to prevent something like this happen to you?  1.  Never blindly trust advertisement and make hiring decision on advertisement alone; 2. Always ask questions and compare at least 2 lawyers before you hire a lawyer; 3. While attorney fee is one of the very important factors, you must know in most cases a cheap or eager lawyer may have compelling reason to be like that:  lack of experience and skills (you may find very good lawyer at low or reasonable price); 4. If someone refers you to a lawyer, you should know how the previous case was handled; if the previous case is similar to yours; 5.  If you are in immigration court proceedings, you need to hire a lawyer with immigration court experiences.  Many immigration lawyers never went to court and you don't want your case to be their first one.

New Entrepreneurs Parole Rule to Become Reality in Mid July, 2017

The USCIS will publish final rules on January 17, 2017 on the parole of entrepreneurs in the US and it will become effective 180 days after the publication.

The final rules states, among other things:

1.  Parole is not an admission and this is not a new work visa.

2. parole will allow the entrepreneurs and their family member(spouse and unmarried children under 21) to be "paroled into the US for initial 30 months and additional 30 months are possible if certain conditions are met.

3. Parole application is made on form I-941 with filing fees and bio-metric fees.

The basic requirements to qualify an alien as entrepreneur are as follows:

a.  own at least 10% of the company equity interest; b. plays active and central role in the operation of the company; c. has at least $250,000 funding from qualified US investors or $100,000 from federal, state or local government funding; d. or if the alien can show significant benefits to the public requirements listed in a, b and c may be lowered.

Extension may be made for once for 30 months.  Such entrepreneur should seek other options during this time, such as H-1 or O-1, or seek permanent residency through other existing immigration laws.  in another words, the new rule will not lead to green card.

Bombshell: USCIS proposes to increase EB5 investment amount

The USCIS will publish new rules called "EB-5 Immigrant Investor Program Modernization" tomorrow that among other things, dramatically increase the minimum investment amount from $500,000 to $1,350,000(TEA) and from $1,000,000 to $1,800,000 (none TEA).

The public will have 3 months to make comments about the new rules and after that the USCIS has about 2 months to finalize and publish the new rules.

Therefore, the higher amount rule may take effect sometime after June, 2017.

This 5-6 months period may be the last chance to invest in EB-5 program at the current lower amount.

EB-5 regional center law extended to April 28, 2017

According to the most recent report, the Senate will pass(House has passed it) the budget bill which includes many expiring laws, such as the EB5 regional center law. Present Obama will sign the bill once it passes the Senate soon.

If not passed the US government will be shut down at midnight tonight and the EB5 regional center law will expire.

Now we can be all assured that for the next 4 months or so all EB5 cases(I829 not included) will be business as usual.

EB-5 lawsuits

There are many lawsuits in the EB-5 world:  lawsuits against EB5 operators or regional centers and developers;  lawsuits against the USCIS for denying the I-526 or I-829 petitions.  Here are some examples:
Six Chinese investors asked a D.C. federal judge Friday to vacate a decision by the U.S. Homeland Security Department denying them access to the EB-5 visa program after they each invested $500,000 in a rural Alabama hospital, saying the agency’s decision was arbitrary and capricious.
Wei Gan, Wentao Huang, Jian Wang, Xue Wang, Xiaomeng Xu and Lihong Yang filed suit in April, 2016 alleging the government erred in determining that they failed to demonstrate that the hospital experienced “serious losses,” or more than 20 percent of its net worth, in either 2011 or 2012, according to the complaint. It also erroneously held that the investors did not actually put their 2013 investments at risk, according to the filing.
in another lawsuit, a Chinese investor sued her lawyer after she lost all her investment in a scheme.  According to Li Che’s complaint, she and her husband Zhengang Zhang decided in 2012 to immigrate to the U.S. through the EB-5 program.
Zhang traveled to the U.S. in 2012 with a group of foreign investors to look into opportunities that could allow him and his wife to get a visa so their daughter could attend school in the country, Che said.

On that trip, he met and stayed with Xiaolan Zhang, whom he believed to be a successful businesswoman living in a ritzy Washington, D.C., suburb, and Peide Yan, whom Xiaolan Zhang purported to be her husband and the father of her three daughters. According to Che, however, Xiaolan Zhang is neither married to Yan nor is she a successful business owner, but rather a convicted credit card thief who financed her lavish lifestyle through a Ponzi scheme.

The couple hatched a plan with Xiaolan Zhang to open a luxury gifts store in Maryland, and Xiaolan Zhang introduced them to Chang, whom Che hired to guide her and her husband’s EB-5 application and their participation in the business. Che and her husband, who do not speak English, hired Chang in part because he could speak their native Mandarin, according to the complaint.

In April 2013, the couple wired $1.02 million into an account controlled by Xiaolan Zhang. Almost immediately, Xiaolan Zhang liquidated that count and transferred the funds into an account she controlled, using it to pay back investors who had gotten wise to her Ponzi scheme, Che said. Meanwhile, Chang communicated frequently with Zhang but routinely failed to do so with Che and her husband, allowing the theft to go on unabated, Che said.

Che claims she ultimately discovered the scheme in 2015 after Chang put her in touch with an investigator, but not before Zhang had stolen her entire initial investment and additional funds she had requested.
Chang has denied all the claims and asked the court to dismiss the case.
These cases highlight that importance of having an honest and competent immigration lawyer to guide you through the complicated immigration process, especially the EB-5 process.
We welcome your thoughts and inquiries should you desire to immigrant to the United States.

EB5 lawsuit: 7 Chinese Investors sued the USCIS on their I-526 denials

MIRROR LAKE VILLAGE, LLC,  Yanxue DENG of Beijing and other 6 Chinese Investors  filed lawsuit in DC against the USCIS on September 30, 2016. The lawsuit asks the court to approve their I-526 petitions which were denied and motion to reopen/reconsider also denied.

The only issue in this case is if the clause in the subscription agreement and operating agreement that gives the Chinese investors the right to ask the company to repurchase their interest back IF the company has money to do so after their application to remove their condition are approved by the USCIS.  The USCIS claims such provision constitute a guarantee of the return of the investment and therefore the investment is not at risk. 

These Chinese investors made their investment in March-June of 2014.  Their I-526 were filed in October-November of 2014(unusual that I-526 filed 4-6 months after investment was made).

Regardless of the final result of this litigation, the lessen we can learn from this case is that regional center and the project manager should never put untested or risky clauses in EB5 documents that may jeopardize the chance of a smooth I-526 adjudication.

More than 90% cases denied in immigration court if not represented by lawyer

If an asylum seeker is not represented by an attorney, almost all (91%) of them are denied asylum. In contrast, a significantly higher proportion of represented asylum seekers are successful. Overall grant rate for asylum applicants in the nation is about 50%; San Francisco has one of the highest grant rates in the nation with about 38.4% average grant rate for the last 5 years.

Here is the breakdown of some of the senior judges in San Francisco immigration court (new judges are not listed here due to lack of data):

Judge Hoogasian 25% denial rate; Judge geisee 34% denial; Judge Greene 17% denial; Judge Webber 33.8%; Judge Lyones 27.3% denial; Judge King 28.5% denial; Judge Remirez 15.3% denial; Judge marks 17.1% denial; Judge Harward 34.3% denial and Judge Daw 37% denial.

Some immigration judges deny more than 95% of asylum applications in other courts.

Anyone in immigration court should know the basic facts about the deportation procedures, immigration judge on your case and other aspects of the immigration law to maximize your chance of success because this may well be your last chance to stay in the US.

EB5 Regional Center law extended to 12/9/2016!

Direct investment under the EB5 law is permanent.

Regional center law, under which an investor can invest in bigger projects with pool of other investors,  is only good for several years at a time.  The current law expires today.

The extension passed yesterday by the Congress and signed into law by the President would extend the law to December 9, 2016.

from now until December 9, 2016, there are several possibilities about the future of EB5 regional center law:

1. extend until 9/30/2017 without any changes;

2; a short extension to the Spring of 2017 without changes;

3. substantive changes and extension of the law to another 3-5 years.  The changes may include the increase of investment amount from $500,000 to $800,000 in rural or TEA areas; tightens the rules on TEA designation; Securities law compliance; regional center/project compliance review, among other things.

It is always advisable for anyone who wants to invest in the EB5 program to start the process ASAP.

 

EB5 regional center law will expire on September 30, 2016.

Currently, there is no legislation at the Congress to simply extend the law.  However, it is very likely that temporary extension of the regional center law will be added to the government spending bill to be passed by 9/30/16 and extend the law toDecember 9, 2016 (just like last year).

By then it is likely that EB5 reform bill will be debated and possibly passed to extend the law for 5 years.  

At this time, there is a bill to reform the regional center law.  Among many substantive changes, the minimum investment will be increased to $800,000 for TEA project and $1,200,000 for Non TEA investment.  Other proposed changes, if passed as it is, will significantly decrease the viability of the regional center program.

Stay tune for further information and update.

Great News for entrepreneurs to start up business in the US.

USCIS has just announced its too waited proposed rule to allow international entrepreneurs to stay in the US, initially for 2 years with the possibility to extend for another 3 years, to run or manage the newly started business.  The rule is not effective pending comments.  If everything works out well we expect the new rule will take effective later this year.

Detailed requirements for this special visa, or officially called" parole", is as follows:

  1. Formation of New Start-Up Entity. The applicant has recently formed a new entity in the United States that has lawfully done business since its creation and has substantial potential for rapid growth and job creation. DHS proposes that an entity may be generally considered recently formed if it was created within the 3 years preceding the date of the filing of the initial parole application.

 2. Applicant is an Entrepreneur. The applicant is an entrepreneur of the start-up entity who is well-positioned to advance the entity’s business. DHS proposes that an applicant may generally meet this standard by providing evidence that he or she: (1) possesses a significant (at least 15 percent) ownership interest in the “shall be deemed to refer to the Secretary” of Homeland Security. .and (2) has an active and central role in the operations and future growth of the entity, such that his or her knowledge, skills, or experience would substantially assist the entity in conducting and growing its business in the United States. Such an applicant cannot be a mere investor. 

3. Significant U.S. Capital Investment or Government Funding. The applicant can further validate, through reliable supporting evidence, the entity’s substantial potential for rapid growth and job creation. DHS proposes that an applicant may be able to satisfy this criterion in one of several ways: a. Investments from established U.S. investors. The applicant may show that the entity has received significant investment of capital from certain qualified U.S. investors with established records of successful investments. DHS proposes that an applicant would generally be able to meet this standard by demonstrating that the start-up entity has received investments of capital totaling $345,000 or more from established U.S. investors (such as venture capital firms, angel investors, or start-up accelerators) with a history of substantial investment in successful start-up entities. b. Government grants. The applicant may show that the start-up entity has received significant awards or grants from Federal, State or local government entities with expertise in economic development, research and development, and/or job creation. DHS proposes that an applicant would generally be able to meet this standard by demonstrating that the start-up  has received monetary awards or grants totaling $100,000 or more from government entities that typically provide such funding to U.S. businesses for economic, research and development, or job creation purposes. c. Alternative criteria. DHS further proposes alternative criteria under which an applicant who partially meets one or more of the above sub-criteria related to capital investment or government funding may be considered for parole under this rule if he or she provides additional reliable and compelling evidence that his or her entry would provide a significant public benefit to the United States. Such evidence would need to serve as a compelling validation of the entity’s substantial potential for rapid growth and job creation. 

If you think you may qualify for this benefits, you should consult with an experienced immigration lawyer to get ready.

AAO dismiss a Chinese investor's I-526 due to lawful source of fund

Administrative Appeals office just dismissed a Chinese investor's I-526 petition. MATTER OF Y -G.

 In this case, the Chinese investor used a loan proceeds from a property she used to own but gifted to her son.  Her son later borrowed money from a bank and his mother used this money for her I-526 petition.  She was also on the loan paper that guaranty the repayment of the loan.

This petition was denied because USCIS states that she cannot use loan proceeds where she did not own the property.  She then tried to say that her son gave her the loan proceeds as gift.  CIS counted that first of all a petitioner cannot change the nature of the fund after filing as it is considered “material change"; secondly since she is the guarantor of the loan, and if her son or she fail to pay the loan the bank would foreclose the property which she did not own, she could not demonstrate lawful source of her EB5 investment fund.

This case clearly illustrated how a bad legal advice could hurt your case.  This case is clearly approvable if proper legal advice was obtained.