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.

Unauthorized employment prior to adjustment of status may lead to citizenship denial

The 8th Circuit of Appeals in a recent case ( Al-Saadoon v. Holder) dismissed the appeal by the alien who claims that the denial of his N-400 application was in proper.  Essentially the USCIS found out that Mr. Al-Saadoon had several months of unauthorized employment before he adjusted his status to permanent resident in 2007.  The USCIS then alleges that Mr. Al-Saadoon's adjustment of status was approved in error and therefore he was never lawfully admitted to the united States.  

Many N-400 applicants erroneously believe that they can apply for naturalization once they have the number of years of LPR residence.  the fact is that the USCIS reviews everything in the applicant's file and many potential problems may cause the derail of the application.  We have seen the USCIS denies N-400 based on the lack of employment when the LPR was based on employment;  denials based on issues at the adjustment of status or at the immigrant visa application at the consulate.

To make things worse, sometimes after the denial, the USCIS would simply leave the applicants in a limbo by not issuing Notice to Appear.  Many applicants may have relief in immigration court if referred to court.

We will be happy to advise or represent you if you contact us.

Big company and Big law firm cannot save the doomed PERM due to a typo

According to Law360, a legal publisher that reports legal news, Netflix's PERM application for its employee filed in or before 2011 was denied and it s appeal unsuccessful due to a typo about how many months of experience needed for the job.

This case illustrated how important to carefully choose your immigration lawyer.  in this case not only lots of money waited, the poor employees waited for more than 5 years only to have his PERM denied and he has to start all over again.  Its likely that his 6 year H-1 visa would be maxed out.

here is part of the LAW360 report:  

Law360, New York (June 9, 2016, 6:07 PM ET) -- The Board of Alien Labor Certification Appeals on Wednesday upheld the denial of a permanent labor certification filed by Netflix Inc., rejecting the company's bid to fix a typo on the application about the foreign employee's prior work experience.

A panel of three administrative law judges for BALCA affirmed a U.S. Department of Labor certifying officer’s 2011 decision to deny the permanent labor certification application the company filed on behalf of immigrant Sandeep Balagangadharan Menon, because the form said the job required 72 months of work experience when in fact the job does not require that long time experience.

Another regional center busted!

SEC just filed a lawsuit against a Chinese couple, Charles Liu and Xin (Lisa)Wang(wife) in Southern California, charging the couple of stealing 50 Chinese investors' money.  The regional center sold EB5 investment to build "cancer treatment center".   The SEC complaint alleges that the couple and other defendants owned or controlled by the couple misappropriated or diverted approximately $17.4 million from the accounts where the contributions were deposited. Liu misappropriated at least $6,285,000 for himself, and his wife and co-defendant, Wang, misappropriated at least $1,400,000. Liu also transferred over $11,845,000 to three marketing firms in China, including $3,500,000 to a firm of which Wang is CEO and chairman of the board. Liu also allowed most of the Administrative Fees to be used for undisclosed purposes. As a result, the EB-5 eligible cancer treatment center that the defendants represented would be constructed with investor funds has not been built. Liu and Wang have carried out this fraud through a number of entities, three of which are named as defendants.

It is shocking to see that more and more fraudulent regional centers have been exposed in the past year.  EB5 investors, most of them Chinese investors, have been subject to such horrific fraud.  They will certainly lose some or all of their $545,000 and their immigration benefits.

EB5 application fees to increase soon

USCIS has proposed to increase application fee for EB5 cases.  Here are the details:

§  Form I-924A (to be titled “Annual Certification of Regional Center”): new $3,035 fee

§  Form I-924 application for regional center designation or amendment: increase from $6,230 to $17,795

§  Form I-526 immigrant petition: increase from $1,500 to $3,675

§  Form I-829 petition to remove conditions: no change (still $3,750)

While the fee increase may not be that much to make deference when an EB5 investor decides to file EB5 application, the increase is the first time I-526 has been more than doubled.  Other program changes are also under consideration, such as investment amount, TEA rules and source of fund.

USCIS also published the following data, which shows the actual time an USCIS officer worked on each type of applications:

 I-526: 6.5 hours; I-829: 5.5 hours; I-924: 40 hours; I-924A: 5 hours. 

Asylum Interview Timelines

Asylum Office published its 8 asylum offices interview schedules.

LA:  now schedule interview for I-589 filed on or before 8/2011;  Miami filed on or before 5/2013;  Houston filed on or before 4/2014'  Newark on or before 7/2013; NY on or before 7/2014; San Francisco on or before 3/2014; Chicago on or before 8/2013 and Arlington on or before 10/2013.