Integrity Legal

In recent posts on this blog it has been noted that the United States Citizenship and Immigration Service (USCIS) must raise the fees associated with the processing of certain visa petitions. The L1 visa is a commonly sought travel document for those individuals working within a multinational corporation. Specifically, the L1 visa was designed to provide a specific travel document for intracompany transferees. The following is directly quoted from a recent executive summary compiled by USCIS which was distributed by the American Immigration Lawyers Association (AILA):

On August 13, 2010, President Obama signed into law Public Law 111-230. The new law contains provisions that require petitioners to pay an additional $2,000 for certain H-1B petitions and an additional $2,250 for certain L-1 petitions. To begin public outreach on this legislation, USCIS held a teleconference on August 19, 2010 to share how USCIS will implement it…

The recent fee increase would seem to have raised some questions among petitioners, applicants, and practitioners. Therefore, USCIS officials were required to provide answers to some of the frequently asked questions. The following is quoted from the aforementioned executive summary:

During the teleconference, among other answers provided, USCIS informed the public that:

o The additional fee is required for certain H-1B or L-1 petitions postmarked on or after August
14, 2010;

o The law will remain in effect through September 30, 2014;

o This law is applicable to petitioners who employ 50 or more employees in the U.S. and more than 50% of the petitioner’s employees are in H-1B or L nonimmigrant status;

o Until the Form I-129 is updated, if a petitioner believes s/he is exempt from the requirement to pay the additional fee(s), the petitioners should include a cover letter, with their filings, that explains why the added fee does not apply. At the top of the cover letter, petitioners should include a notation of whether or not the fee is required in bold capital letters;

o If a petitioner does not include the added fee and USCIS determines the fee is required or if USCIS cannot determine if the fee is required, USCIS will issue a Request for Evidence (RFE) for the additional fee or for further explanation; and

o If the petitioner includes the increased fee, the fee should be paid by a separate check. The check should be made payable to the Department of Homeland Security. By paying the increased fee separately, USCIS will be able to more quickly issue a refund, if it is later determined that the increased fee was not required.

Employment visas to the United States of America are highly sought by foreign nationals residing in the United States as well as abroad. That said, the requirements that must be met for obtainment of such travel documents can be stringent. Therefore, the individuals seeking such visas are well advised to contact an American attorney in order to be fully advised of the processing details.

For further related information please see: E2 Visa.

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In recent months, this author has received a number of inquires regarding the American EB-5 visa. Many seem interested in this visa category because it accords the bearer with substantial benefits in the United States and also puts EB-5 visa holders on track to obtain United States Citizenship. In order to provide the reading public with relevant information, this post will provide a brief overview of the EB-5 visa and some information regarding the application process.

A well rounded layman’s definition of the EB-5 visa can be found at wikipedia.com. To briefly quote wikipedia’s entry regarding the EB-5 visa directly:

“The EB-5 visa for Immigrant Investors is a United States visa created by the Immigration Act of 1990. This visa provides a method of obtaining a green card for foreign nationals who invest money in the United States.^[1] To obtain the visa, individuals must invest at least $1 million, creating at least 10 jobs.^[2]

By investing in certain qualified investments or regional centers with high unemployment rates, the required investment amount is $500,000. The Immigrant Investor Pilot Program was created by Section 610 of Public Law 102-395 on October 6, 1992. This was in accordance to a Congressional mandate aimed at stimulating economic activity and job growth, while allowing eligible aliens the opportunity to become lawful permanent residents. This “Pilot Program” required only $500,000 of investment in exchange for permanent resident status. The investment could only be received by an economic unit defined as a Regional Center.”

Although the above definition provides superficial insight into the mechanics of the EB-5 visa, the official website of the United States Citizenship and Immigration Service (USCIS) may provide deeper elucidation into the eligibility requirements for an EB-5 visa:

Eligibility Criteria

New Business Enterprise

To qualify you must:

1. Invest or be in the process of investing at least $1,000,000.  If your investment is in a designated targeted employment area (discussed further below) then the minimum investment requirement is $500,000.
2. Benefit the U.S. economy by providing goods or services to U.S. markets.
3. Create full-time employment for at least 10 U.S. workers.  This includes U.S. citizens, Green Card holders (lawful permanent residents) and other individuals lawfully authorized to work in the U.S. (however it does not include you (the immigrant), or your spouse, sons or daughters).
4. Be involved in the day-to-day management of the new business or directly manage it through formulating business policy – for example as a corporate officer or board member.

Targeted Employment Area is defined by law as “a rural area or an area that has experienced high unemployment of at least 150 percent of the national average.”  For further detail click on the Laws section of this website and access section 203(b)(5)(B) of the Immigration Nationality Act (INA).

Troubled Business

To qualify you must:

1. Invest in a business that has existed for at least two years.
2. Invest in a business that has incurred a net loss, based on generally accepted accounting principles, for the 12 to 24 month period before you filed the Form I-526 Immigrant Petition by an Alien Entrepreneur.
3. The loss for the 12 to 24 month period must be at least equal to 20 percent of the business’s net worth before the loss.
4. Maintain the number of jobs at no less than the pre-investment level for a period of at least two years.
5. Be involved in the day-to-day management of the troubled business or directly manage it through formulating business policy.  For example as a corporate officer or board member.
6. The same investment requirements of the new commercial enterprise investment apply to a troubled business investment ($1,000,000 or $500,000 in a targeted employment area).

Regional Center Pilot Program

To qualify you must:

1. Invest at least $1,000,000 or $500,000 in a regional center affiliated new commercial enterpriose or a troubled business located within the area of the USCIS designated Regional Center.  Regional Centers are defined and discussed further below.
2. Create at least 10 new full-time jobs either directly through the capital investment.

A Regional Center is defined as any economic unit, public or private, which is involved with the promotion of economic growth, improved regional productivity, job creation, and increased domestic capital investment. The organizers of a regional center seeking the regional center designation from USCIS must submit a proposal showing:

• How the regional center plans to focus on a geographical region within the U.S., and msut explain how the regional center will achieve the required economic growth within this regional area
• That the regional center’s business plan can be relied upon as a viable business model grounded in reasonable and credible estimates and assumptions for market conditions, project costs, and activity timelines
• How in verifiable detail (using economic models in some instances) jobs will be created directly or indirectly through capital investments made in accordance with the regional center’s business plan
• The amount and source of capital committed to the project and the promotional efforts made and planned for the business project.

As can be seen from the above citation, the eligibility criteria for an EB-5 visa are rigorous, but not insurmountable for an applicant who has the assistance of a competent and experienced US Immigration attorney.  Obtainment of EB-5 visas can require a great deal of time and expense in an effort to ensure that the eligibility and application requirements are met at the time of application submission. Those interested in obtaining such a travel document are well advised to contact an American Immigration lawyer.

For further details about US Immigration in general please see: US Visa.

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