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How to qualify for treaty trader (E-1) visa?

Two Mexican citizens established a US company to import fresh produce from Mexico and sell it in the U.S. and Canada. Each member held 50% interest in the US company. Each member invested “substantial” amount of capital and put it “at risk”. The company rented office space and and warehouse, obtained a license for the US Department of Agriculture, a Blue book rating, registered trademark, hired customs broker and incurred marketing and warehouse expenses. The company created job opportunities for US workers – hired a full time sales representative and started interviewing for other positions. During its first season, the company generated very healthy profit and took steps to increase its marketing efforts to increase sales and visibility.

We established that the trade is already in existence, it is “substantial” and principally (more than 50% of total volume of international trade) between the US and Mexico.

Please note that this article does not constitute a legal advice.  We simplified the law to outline one treaty trader (E-1) visa case study. If you would like to obtain a treaty trader (E-1) visa, call our experienced E-1 visa attorney at 480-425-2009 or schedule your consultation online.

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Is US-Canada border still closed for non-essential travel?

The land border between the US and Canada remains closed until October 21, 2020 for “non-essential” travel. The travel restrictions do not apply to travel by air, sea and to freight rail. The “essential travel” includes but is not limited to: (i) U.S. citizens and legal permanent residents, (ii) international students, (iii) people traveling to receive medical treatment, (iv) emergency responders and public health officials, (v) truck drivers moving cargo or other individuals engaged in international trade, (vi) official government and diplomatic travel, and (vii) members of the U.S. armed forces and their spouses and children.

Most U.S. ports of entry interpret the restrictions that only B1/B2 travel is prohibited, while other ports of entry interpret the restrictions more narrowly and require proof of “essentiality”. The Customs and Border Protection is still performing routine adjudications of TN and L-1 petitions at the land ports of entry, although some land ports are requiring proof that the proposed employment is “essential”.

Canada’s Quarantine Act requires anyone who is permitted to enter Canada to self-isolate for 14 days following entry to Canada (unless they are flag-poling).

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May investments in multiple businesses be combined for EB-5 green card?

Investors sometime want to invest in multiple business. Some businesses may not need 10 new full time jobs. We often hear a question whether the $1,800,000 investment (or $900,000 in targeted employment areas) may be diversified across a portfolio of businesses. For example, a client wanted to invest in two restaurant franchises ($800,000 in one restaurant and one million in the second restaurant).

An investor my invest in several business, but only if the minimum investment amount is first placed in a single new commercial enterprise. An investor may invest in one enterprise that diversifies and puts $800,000 towards one business it wholly owns and $1,000,000 towards another business it wholly owns.

Please note that this article does not constitute a legal advice.  We simplified the law to outline only one aspect of the EB-5 green card process. If you would like to obtain an investment (EB-5) green card, call our experienced EB-5 green card attorney at 480-425-2009 or schedule your consultation online.

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Does a position shared by several employees count as one full-time job for EB-5 job creation?

In order to get an EB-5 green card through investment, the investor has to create at least 10 full-time jobs. A client wanted to invest in a restaurant where several employees would share some positions. Does that qualify?

To be considered a full-time job, it requires 35 hours a week. Where two or more employees share a full-time position it counts as one-full time job if they combine at least 35 hours per week. To demonstrate a full-time position is shared by more than one employees, the investor may should a written job-sharing agreement, we weekly schedule or evidence of the sharing of the responsibilities or benefits of a permanent full time position. However, two part-time jobs do not count.

Please note that this article does not constitute a legal advice.  We simplified the law to outline only one aspect of the EB-5 green card process. If you would like to obtain an investment (EB-5) green card, call our experienced EB-5 green card attorney at 480-425-2009 or schedule your consultation online.

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What happens to the conditional (EB-5) green card of the investor’s wife in case of divorce?

One way to obtain a legal permanent resident status in the US is through investment (under EB-5 category). The first step is to file a petition for classification as an alien entrepreneur. The petition must be accompanied by evidence that the investor has invested or is actively in the process of investing lawfully obtained capital in a new commercial enterprise in the U.S. which will create at least 10 full-time jobs. One the petition is approved, the investor can obtain an immigrant visa or adjust his or her status to the conditional resident.

If the spouse of the principal EB-5 investor obtains a divorce after the conditional EB-5 resident status is granted, the ex-spouse may still file the petition to remove conditions, and if it is approved, the ex-spouse becomes a legal permanent resident (green card holder).

The petition to remove conditions in conditional resident status must be filed within 90 days before the second anniversary of the conditional status. The petition must document that the conditional resident (i) invested or was actively investing the required capital that (s)he continuously maintained the capital investment over those two years, (ii) created or can be expected to create within a reasonable time ten full-time jobs.

Please note that this article does not constitute a legal advice.  We simplified the law to outline only one aspect of the EB-5 green card process. If you would like to obtain an investment (EB-5) green card, call our experienced EB-5 green card attorney at 480-425-2009 or schedule your consultation online.

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Can E-2 investment “count” toward EB-5 investment?

E-2 visa is for investors from treaty countries who invest “substantial” amount of capital into a US business. E-2 visa allows them to manage that business. E-2 visa has to be renewed every few years, depending on the treaty. A major downside of E-2 visa and a significant motivator for converting to the EB-5 green card is the problem of children of E-2 investors who are not eligible for E-2 dependent visas once they turn 21.

While there is no dollar amount for E-2 visa, in order to get EB-5 green card, the investor has to invest at least $900,000 in certain targeted employment areas or $1,800,000 anywhere else. While the E-2 capital investment may be counted towards the EB-5 investment, retained earnings or revenue generated by the E-2 investment may not be counted toward EB-5 investment. The investor must draw funds from the E-2 business and invest personal funds in order to “count” towards EB-5 investment.

In addition, the business must already have created the requisite ten jobs, or demonstrate that it will create the remaining jobs needed to meet the ten-job threshold within two years of the grant of conditional permanent resident status.

Planning and navigating the transition from E-2 to EB-5 can be a complicated process. If you would like to transition from E-2 investment to EB-5 investment and obtain an investment (EB-5) green card, call our experienced EB-5 green card attorney at 480-425-2009 or schedule your consultation online.

Please note that this article does not constitute a legal advice.  We simplified the law to outline only one aspect of the transition from E-2 visa to EB-5 green card.

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Increased USCIS fees will impact EB-5 applications

All EB-5 applications postmarked on or after October 2, 2020, must include payment for the new increased filing fee. The new filing fee for the immigrant petition (I-526) is $4,010, the petition to remove conditions on residence (I-829) is $3,900, application for regional center designation (I-924) is $17,795, and the annual certification of the regional center (I-924A) is $4.465. Applications with incorrect fees will be rejected by USCIS and result in significant re-filing delays.

Two lawsuits have been filed against the fee increase in the district courts in California and in DC.  A hearing on the preliminary injunction in the U.S. District Court for the Northern District of California has been scheduled for September 25 and it is anticipated that a decision on the preliminary injunction will be rendered before October 2.

Please note that this article does not constitute a legal advice.  We simplified the law to outline one aspect of the EB-5 green card process.  If you would like us to obtain an investment (EB-5) green card, call our experienced EB-5 green card attorney at 480-425-2009 or schedule your consultation online

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USCIS Issues Policy Guidance on O Visa

The Guidance expands upon evaluating O-1 eligibility, including how USCIS officers determine if the O-1 beneficiary has extraordinary ability or achievement. An officer first determines whether the O-1 petitioner has submitted evidence meeting the minimum number of criteria or a qualifying award. If the O-1 petitioner meets the evidentiary requirements, the officer must then consider all the evidence in the record in its totality to determine if the O-1 beneficiary is an alien of extraordinary ability or achievement.

The guidance further clarifies the circumstances under which a petitioner may rely upon “comparable evidence” to meet the evidentiary requirements for certain O-1 beneficiaries. For comparable evidence to be considered, the O-1 petitioner must explain why a particular evidentiary criterion listed in the regulations is not readily applicable to the beneficiary’s occupation, as well as why the submitted evidence is “comparable” to that criterion.

For a case study of one of our O-1 visa approval, click here.

Please note that this article does not constitute a legal advice.  We simplified the law to outline the O-1 visa evaluation process.  If you would like us to obtain O-1 visa, call our experienced O-1 visa attorney at 480-425-2009 or schedule your consultation online

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Does the period of adjudication EB-5 investor’s Form I-829 count towards the 5-year residency requirement for naturalization?

Conditional permanent residents enjoy the same rights, privileges, responsibilities, and duties as Legal Permanent Residents, including the right to apply for naturalization. In order to be eligible for naturalization, the Conditional Resident must resident continuously in the US 5 years and must be physically present in the US for at least one-half of the 5 years. The time spent as Conditional Resident is credited toward the time required for residence and physical presence in the US for naturalization.

Conditional residents can apply for naturalization, but the naturalization cannot be granted before the Conditional Resident status is removed (before the I-829 is adjudicated).

Please note that this article does not constitute a legal advice.  We simplified the law to outline one aspect of EB-5 process.  If you would like us to obtain a green card through investment (EB-5), call our experienced EB-5 green card attorney at 480-425-2009 or schedule your consultation online

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What are the income requirements for marriage green card?

In order to obtain a green card (legal permanent resident status), the green card applicant must submit an affidavit of support by a sponsor.   The sponsor must be a US citizen or legal permanent resident, 18 years of age, domiciled in the and have an income 125% above the federal poverty line. In 2020, an income 125% above the federal poverty line for a household of 2 people is $21,550, for a household of 3 people $27,150 and for the household of 4 people is $32,750.   The income of certain household members may be included.  If the sponsor cannot meet the minimum-income requirements, (s)he may provide evidence of assets that are readily available or seek a joint sponsor.  The affidavit may not be necessary if the green card applicant already has 40 quarters of earnings in the US.     

Please note that this article does not constitute a legal advice.  We simplified the law to outline one aspect of the marriage green card process.  If you would like us to obtain a marriage green card, call our experienced marriage green card attorney at 480-425-2009 or schedule your consultation online