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Loan proceeds qualify as cash for EB-5 investment

D.C. Circuit Court ruled that loan proceeds qualify as cash under the EB-5 Program. Under a contrary interpretation, USCIS treats the investment as indebtedness rather than cash subject to additional requirements. Specifically, a loan may qualify as capital for EB-5 investment only if they are secured by assets owned by the investor. The court rejected such collateralization interpretation.

Please note that this article does not constitute a legal advice.  We simplified the law to outline only one aspect of the latest development of 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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New proposed H-1B “wage-based” selection process

The Department of Homeland Security (DHS) proposes to
change the process of selecting H-1B registrations for filing of H-1B cap-subject petitions from a random lottery selection to a wage-level-based selection process.

If more registrations were received during the annual
initial registration period than necessary to reach the
cap, USCIS would rank and select the registrations received generally on the basis of the highest OES wage level in the area of intended employment, beginning with OES wage level IV and proceeding in descending order with OES wage levels III, II, and I

These proposed changes would incentivize petitioners to offer higher wages
to H-1B workers or petition for positions requiring higher skills By changing the selection process, DHS would increase the chance
of selection for registrations or petitions seeking to employ beneficiaries at wages that would equal or exceed the level IV or level III prevailing wage. The DHS data shows that only 28.53% of H-1B petitions received in FYs 2018 and 2019 were filed for level IV and III wages.

The 30-day comments period starts on November 2, 2020.

Please note that this article does not constitute a legal advice.  We simplified the law to outline the proposed changes to H-1B selection process. If you would like to obtain an H-1B status, call our experienced H-1B attorney at 480-425-2009 or schedule your consultation online.

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How can an undocumented immigrant get legal status in the US?

Some undocumented foreign nationals may be eligible for asylum if they can establish that because of a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion, are unable or unwilling to return to their country of nationality, and are unable or unwilling to avail themselves of the protection of that country.

Foreign nationals in removal proceedings may be eligible for cancellation of removal if (i) they have been physically present in the US for a continuous period of 10 years, (ii) have been persons of good moral character for 10 years, (iii) have not bee convicted of certain offenses, (iv) establish that removal would result in exceptional and extremely unusual hardship to US citizen or legal permanent resident spouse, parent or child and (v) warrant a favorable exercise of discretion.

Persons who: (i) have suffered substantial physical or mental abuse as a result of having been a victim of certain criminal activity (such as murder, rape, kidnapping, domestic violence), (ii) possess credible and reliable information establishing that (s)he has knowledge of details concerning the criminal activity, (iii) have been helpful, are being helpful, or are likely to be helpful in the investigation or prosecution of criminal activity and (iv) criminal activity occurred in the US or violated a US federal law that provided for extraterritorial jurisdiction may qualify for U visa.

Certain persons are allowed to apply of adjustment of status notwithstanding the fact that they entered without inspection, overstayed, or worked without authorization if: they (a) are beneficiaries of a labor certification or visa petition filed on or before January 14, 1998; or (ii) are beneficiaries of a labor certification of visa petition that was filed after January 14, 1998 but on or before April 30, 2001, and were physically present in the US on December 21, 2000.

Undocumented immigrant’s spouse, adult child or parent who are US citizens may petition for their legal permanent resident status.

Temporary protected status (TPS) is a temporary benefit to certain nationals of designated countries due to conditions in the country (such as ongoing armed conflict, an environmental disaster, or an epidemic or other extraordinary and temporary conditions) that temporarily prevent the country’s nationals from returning. Countries currently designated for TPS are El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria and Yemen.

Undocumented persons who demonstrate that the (i) they came to the US before reaching 16th birthday, (ii) were physically present in the US on June 15, 2012, (iii) have continuously resided in the US since June 15, 2007, up to the present time, (iv) entered without inspection or were out of status on June 15, 2012, (v) were under the age of 31 on June 15, 2012, (vi) are currently in school, graduated or obtained a certificate of completion from high school, obtained GED certificate or are honorably discharged veterans of the Coast Guard or US Armed Forces may qualify for Deferred Action for Childhood Arrivals (DACA).

Please note that this article does not constitute a legal advice.  We simplified the law to outline some of the options to consider for undocumented immigrants to get legal status in the US. If you would like to obtain legal status in the US, call our experienced immigration attorney at 480-425-2009 or schedule your consultation online.

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How will new H-1B prevailing wage increase effect H-1B eligibility?

On October 8, 2020, Department of Labor (“DOL”) published an interim final rule changing its method for calculating the prevailing wage rates in the H-1B program. DOL altered the level 1 prevailing wage from the 17th percentile of the OES wage distribution to 45th percentile on the false
assumption that the wages paid to individuals with a master’s degree represent the entry level wages for H-1B workers. Based on that upward adjustment, DOL increased the level 2 prevailing wage rate from 34th to the 62nd percentile, the level 3 prevailing wage from the 50th to the 78th percentile and the level 4 prevailing wage from the 67th percentile to the 95th percentile.

The upward adjustment of prevailing wage rates results in an overnight increase in wage rates and may likely result in many employers not hiring foreign workers. Lawsuits were filed seeking injunction to stop the DOL interim final rule.

Please note that this article does not constitute a legal advice.  We simplified the law to outline only some proposed changes to H-1B rules. If you would like to obtain an H-1B status, call our experienced H-1B 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).

Please note that this article does not constitute legal advice.  We simplified the law to outline the law. If you to schedule a consultation, call our experienced immigration attorney at 480-425-2009 or schedule your consultation online.

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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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Can you get a permanent marriage green card if you get divorced?

?I am seeing this question often.   Sometime after the marriage green interview, the conditional green card holder contacts my office and tells me that the marriage is not working out for numerous reasons.  It may be a physical or emotion abuse, infidelity, etc.   The conditional green card holder is worried what will happen with his or her permanent green card.

One example is a client of mine who was planning to relocate to live with her new husband in his city of residence.   Having three children, this move required a lot of coordination – finding a job, schools for her kids, saving money, etc.  When she was finally ready to move, she found out that her husband found someone else.  At the end, I was still able to get her the permanent green card because she entered into a marriage in good faith.

As long as the marriage was entered in good faith, the conditional resident may have her or his conditions removed and get her or his permanent green card. 

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 and removal of conditions on residence.  If you would like us to obtain a marriage green card or need help with the removal of conditions on residence, call our experienced marriage green card attorney at 480-425-2009 or schedule your consultation online