International Entrepreneur Rule(IER) May Come Back after all

The Trump Administration delayed the effective date of the Obama Era rules to allow foreign entrepreneurs to receive special "parole" in order to stay in the US to start their new business.

Today a federal judge ruled the delay violated rule of law and invalidated the delay and ordered the government to start process applications of foreign entrepreneurs.  While we do not have any details and the implications of the ruling at this time.  The government may appeal the ruling and anything could happen.  The ruling, however, is a welcome sign that many Trump Administration decisions on immigration may run afoul with the courts.

We will closely watch the development of this matter.

Here is the judge's ruling.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NATIONAL VENTURE CAPITAL ASSOCIATION, et al., Plaintiffs, v. Civil Action No. 17-1912 (JEB) ELAINE DUKE, Acting Secretary, U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants. ORDER For the reasons set forth in the accompanying Memorandum Opinion, the Court ORDERS that: 

1. Plaintiffs’ Motion for Summary Judgment is GRANTED; 

2. Defendants’ Cross-Motion for Summary Judgment is DENIED; 

3. As the Delay Rule is invalid, it is VACATED; and 

4. Judgment is ENTERED in favor of Plaintiffs. 

T IS SO ORDERED. /s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

Date: December 1, 2017

US Government sues in federal courts in denaturalization cases

The United States today filed civil denaturalization complaints in federal court in the Middle District of Florida, District of Connecticut and District of New Jersey, against three individuals who allegedly obtained their naturalized U.S. citizenship by fraud, the U.S. Department of Justice and U.S. Citizenship and Immigration Services (USCIS) announced. Two Pakistan-born and one India-born individuals’ alleged frauds involved concealing their prior orders of exclusion and deportation under different identities than the identity under which they naturalized.

The US government can file lawsuit to denaturalize anyone who obtained their citizenship by fraud/misrepresentation or other serious offenses.  Do not think you are safe just because you are now a US citizen, if you have dirty secrets in your immigration file.

45 Chinese EB5 investors may welll lose their money and their American Dream

The Securities and Exchange Commission has announced that it has obtained an emergency court order to freeze the assets of a husband and wife in Arcadia, California, who allegedly defrauded investors in two EB-5 investment offerings.

According to the SEC's complaint unsealed yesterday in the U.S. District Court for the Central District of California, Edward Chen (a/k/a Jianqiao Chen, Jian Qiao Chen, and Jian Chen) and Jean Chen (a/k/a Jing Jiang and Jean Jiang) control several companies that raised more than $22.5 million from 45 investors in China for the development of an interior design center in Ontario, California, and a residential condominium building in Los Angeles.

But the SEC alleges that the Chens stole more than $12 million out of investor funds by issuing cashier's checks to Jean Chen, transferring the money to affiliated entities, and purchasing residential real estate completely unrelated to the two EB-5 projects. The Chens allegedly misappropriated more than 91 percent of the money raised from investors in the interior design center project.

Smaller regional centers and projects do represent bigger risks.  

New rule that may bar you from getting immigration benefits for life

On September 1, 2017, the U.S. Department of State (“DOS”) updated its rules to provide U.S. consular officers with new guidance relating to the term “misrepresentation” as it relates to aliens in the U.S. “who conduct themselves in a manner inconsistent with representations they made to consular officers concerning their intentions at the time of visa application or to DHS when applying for admission or for an immigration benefit.”

DOS now has an updated rule titled “Inconsistent Conduct Within 90 Days of Entry” which states:

If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry, as described in subparagraph (2)(b) below, you may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.

In the event that a U.S. consular officer “becomes aware of derogatory information indicating that an alien in the United States who has a valid visa, may have misrepresented his or her intentions to you at the time of visa application, or to DHS at the port of entry or in a filing for an immigration benefit”, they are directed to “bring the derogatory information to the attention of the Department for potential revocation.”

Once you are found to have engaged activities inconsistent with your B or F visa(other types of visa may also be included); DOS may revoke your visa without first contacting you.  You may then be subject to inadmissibility for life unless you receive a waiver.

Please contact us if you have or may have this issue. 

You Could Lose Your US Citizen This Way

A Mexican woman who impersonated a U.S. immigration officer and defrauded undocumented immigrants of thousands of dollars by falsely promising them help to obtain legal status has been stripped of her citizenship by a California federal judge.

U.S. District Judge R. Gary Klausner, of California’s Central District, on Monday revoked the citizenship of Araceli Martinez, who is also known as Maria Araceli Ramos de Martinez. The judge prohibited Martinez from claiming or exercising any rights or privileges of American citizenship, and ordered her to surrender her naturalization certificate and any other citizenship documents to the federal government.

Martinez pleaded guilty to obtaining money, labor or property by false pretense in violation of California state law in Los Angeles County Superior Court in September 2012.

The federal prosecutors said that the native of Mexico falsely presented herself as a U.S. immigration officer to undocumented immigrants between June 2011 and March 2012, offering to help them obtain legal status and scamming them out of thousands of dollars in the process.

Martinez herself applied for citizenship in the midst of her scheme and was naturalized in April 2012.

According to federal prosecutors, Martinez said she had never committed a crime or offense for which she was not arrested during her citizenship interview. This is the key that caused her loss of her US citizen.  If she committed crimes after she became US citizen, she would not have lost her citizenship.

Martinez was arrested by the Los Angeles Sheriff’s Department in June 2012 in the alleged immigration fraud and indicted two days later on 11 counts of obtaining money, labor or property by false pretense under the California statute that governs theft by false pretenses.

When denaturalization proceedings were started by the DOJ in April 2017, Martinez was serving a two-year sentence in the Mendocino County jail in Ukiah, California, for a December 2015 felony grand theft conviction.

First 6 months of the Trump Administration see large increase of deportation

Data for 2/1/17-7/31/17 show that deportation/removal orders are up significantly during the first 6 months of the Trump Presidency.  Here are the numbers: 

Total Orders of Removal: 49,983 Up 27.8 percent over the same time period in 2016 (39,113) 

Total Orders of Removal and Voluntary Departures: 57,069 Up 30.9 percent over the same time period in 2016 (43,595) 

Total Final Decisions: 73,127 Up 14.5 percent over the same time period in 2016 (63,850).

We practice immigration law in court.  If you have any deportation cases or issues please contact us at (415)-576-9923 or email justin@lawbw.com.  Consultation fee may apply.

Can you get an employment based green card under the new immigration reform bill(The RAISE Act)?

Two Republic Senators introduced a new information bill last week.  The bill was supported by  President Trump.

While it is certain that this bill has zero chance of becoming law in its current form, it is interesting to see the concept of the point system spelled out in the bill.

Calculated your points based on the proposal to see if you are qualified to receive a green card(not family based immigration).

The point system lists the following elements to calculate your total points.  You need at least 30 point to be considered for immigration.

 

1.  Age

26-31 years                 10 points

31-35                            8 points

36-40                            6 points

41-45                            4 points

46-50                            2 points

51 or older                     no points

under 18                        cannot apply

 

Your points:  

 

2. Education

High school anywhere    1 point

Foreign Bachelor's degree   5 points

US bachelor's degree      6 points

Foreign Master's in STEM     7 points

US master's in STEM             8 points

 

Your points:  

 

3. English language Proficiency

TOEFL or IELTS

under 59  percentile         no points     

60%-69% percentile       6 points

70%-79% percentile       10 points

80%-89% percentile        11 points

90%-99% percent            12 points

 

Your points:  

 

4.  Extraordinary Achievement

Nobel Laureate or comparable award        25 points

Individual Olympic Medal/first place in an international sporting event    15 points

 

Your points:  

 

5. Job Offer

salary equal or higher than 150% median household income of your state      5 points

if 200% higher        8 points

if 300% higher         13 points

 

Your points:  

 

6.  Investment and management

Invest at least $1.35 million/active role/3 years         6 points

same above with $1.8 million                                    12 points

 

Your points:  

 

Please add all your points to see if you have at least 30.

If you are married, your spouse will need to calculate under the system and if his/her points are higher than yours, use your points to proceed.

If your spouse's points are lower than yours, your points will be adjusted by times 70% and your spouse's points time 30%; then combined your points and your spouse to determine the final points.

Your points:  

Your spouse points:  

Final points after adjustment:  

 

Good luck!

New York City Regional Center sued by its Chinese EB-5 Investors

According to report, more than 50 chinese EB-5 investors sued a famous regional center in may of 2017 for fraud and breach of fiduciary duties.  below is a brief description of the lawsuit.

Case:Chen Dongwu et al. v. New York City Regional Center

Jurisdiction:New York State Court

Status:Pending

Civil / Criminal:Civil

Cause(s) of Action: Fraud

Description:

Plaintiffs are unsophisticated Chinese nationals, most of whom neither speak nor read English. They sought out the American dream -- the opportunity for them and their family to live, go to school and work in the United States. But their dream has been turned into a financial nightmare.Defendants schemed and conspired to fraudulently induce Plaintiffs and other investors (collectively, the "Investors") to each invest $500,000.00 under the EB-5 Immigrant Investor Program. NYCRC, Olsen and Levinsohn misled the Plaintiffs to invest, repeatedly
and continually breached their fiduciary duties, failed to act as reasonable and prudent managers, breached the Fund's Operating Agreement, enriched themselves at the Fund's and the Plaintiff's' expense, violated the Limited Liability Company Law and engaged in a lengthy and extraordinary cover-up to prevent the Plaintiffs and other Investors from discovering the truth.

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!

unnamed.png

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.