Elsie Hui Arias (DL), Los AngelesElsie Hui Arias (DL), Los AngelesJennifer Hermansky, PhiladelphiaJennifer Hermansky, PhiladelphiaReza Rahbaran, Washington, DCReza Rahbaran, Washington, DC

©2012 Overseas Funding Conference

•EB-5 category created in 1990 for foreign nationals who invest in a new commercial enterprise that will benefit the U.S. economy and create at least 10 full-time jobs.

•Congress set aside 10,000 immigrant visas annually for investors and their immediate family members.

•Immigrant Investor Pilot Program enacted in 1993, providing for regional centers – due to sunset on September 30, 2012. Job creation may be estimated using “reasonable methodologies.”

•Invest Capital*•In a New Commercial Enterprise•Engage in Management•Create or Save Jobs

* Capital must be derived from lawful means** Also important to screen investor’s background to evaluate admissibility issues

•US immigration laws contain extensive list of “inadmissibility” grounds that can bar an individual from immigrating to the United States. Common grounds include:

•Conviction of certain crimes•Immigration fraud•Membership in totalitarian party (including Communist Party)•Prior unlawful presence in the United States•Health-related grounds (4 categories)

•Upon analysis, ground of inadmissibility may be overcome by a statutory exception, legal argument that investor’s offense did not meet elements of law, or waiver (latter is often subject to discretion by government officer)

•VERY IMPORTANT to elicit details of investor’s background to evaluate eligibility. Experienced immigration attorney can help evaluate issues.

•Lawful Source •Evidence that source of investment funds is lawful• Where investor derived funds by gift or loan, substantial evidence concerning bona fides of donor or lender should be included•5 years of income tax returns

•Tracing of Capital•Law requires proof that capital is invested by the petitioner – I-526 petition should include evidence that traces capital from commercial enterprise back to petitioner

Lawful Source Tracing of Funds

EB-5 Enterprise

Lawful business earnings

Salary from work

Gifts, loans, etc.

Illegal activity, etc.

$$$ $$$ $$$

EB-5 Investor

Few cases have a perfect paper trail. Were funds isolated or comingled? Can investor show a pattern of income? Possession & control of the funds? How were assets were (1) acquired and (2) sold.

Search up the trail of ownership. Provide purchase/sale deeds; detailed bank

statements; tax records; family records.

•Who is OFAC? OFFICE OF FOREIGN ASSETS CONTROL of the U.S. Treasury.•Why? Foreign Policy and National Security Goals•Purpose? OFAC implements US economic and trade sanctions programs.•Who does it apply to? Individuals, companies, terrorists, criminal organizations •and countries.

OFAC largely acts under presidential national emergency powers. This makes it adaptable and reactionary.

However it is a combination of legislation also. Federal Register NoticesStatutes Code of Federal RegulationsExecutive Orders.

OFAC splits its sanctions programs into comprehensive, targeted and limited scopes.IRANSYRIACUBA

• NORTH KOREA• BURMA• LIBERIA• IVORY COAST• IRAQ• ZIMBABWE• SUDAN• LIBYA

• LEBANON• SOMALIA• CONGO• BELARUS

Iran SyriaCuba

Targeted/Limited SanctionsTargeted/Limited Sanctions◦Caveat - Limited sanctions almost always include financial restrictions and requirement of OFAC licensure.

◦Targeted sanctions affect specific industries of country officials

Covers almost all imports, exports and financial transactions

◦How this affects you, the regional center◦Compliance and best practices◦Consequences of non-compliance – civil

& criminal◦Application procedure tips◦Timeframes◦Reporting guidelines

Many EB-5 applicants are coming from countries with annual currency restrictions. For example,

Iran Syria Egypt China India

Hawala Saraffi Friends Is it legal? I-526 consequences, evidencing the transactions.

File I-526

Conditional

Permanent

Residence (2 years)

Removal Proceeding

s

Lawful Permanen

t Residency

File I-829

Consular Processing(Overseas)

Adjustment of Status (in USA)

OR

•After I-526 is approved, AOS filed on Form I-485 with USCIS. Concurrent filing not available at this time. Current processing time = 3-6 months.•Investors’ immigration background – including lawful maintenance of nonimmigrant status and admissibility issues – must be carefully analyzed before determining whether investor is eligible for AOS.

•For example, an F-1 student who is not attending school on full-time basis is not maintaining status and therefore, may not apply for AOS (will need to consular process).

•IV processing is coordinated initially with National Visa Center (part of U.S. State Department). Following approval of I-526 petition, investor’s file is transferred from USCIS to NVC.•NVC issues fee bills for investor and qualifying dependents (spouse and children).•Following payment of visa fee bills, investor and dependents file IV applications on DS-230 with original civil documents and police certificates.•NVC subsequently forwards complete file to US Embassy in investor’s home country for interview. Investors should be prepared by attorney.

•Conditional Residence/Procedures•Within 90-day period preceding CLPR expiration, investor must file Form I-829 and supporting documentation with USCIS —California Service Center to remove conditions from status. Filing fee is $3,750 (plus $85 per dependent for biometrics).

•Failure to file I-829 petition timely may result in termination of conditional resident status and initiation of removal proceedings.

•If I-829 petition denied, investor may not appeal decision. However, if placed in removal proceedings, investor-petitioner may seek review of USCIS’s decision before an immigration judge. Government bears burden of proof that decision was correctly made.

•Adjudication of Petition•INA §216A and 8 CFR §216.6 •Requirement of regulations

•Petitioner invested or is in process of investing required capital;

•Investment and commercial enterprise have been sustained throughout two-year conditional residence period; and

•Investor created —or can be expected to create within a reasonable period of time – 10 full-time jobs.

•Documentary Requirements•8 CFR § 216.6(a)(4): May include but not limited to:

•Federal, State annual or quarterly tax filings•Audited financial statements•Bank statements•Invoices, receipts, contracts, business licenses•Payroll records, Forms I-9

•Sustaining the Investment•No redemption of minimum capital amount•Return of capital impermissible, Return on capital OK•Accounting losses on Schedule K-1s•Distributions on Schedule K-1

•Job Creation for 10+ Jobs Per Investor•Direct Jobs – W-2s, Payroll Records, Forms I-9, Proof of LPR or citizenship status (beyond the I-9)•Indirect Jobs – Verification of underlying facts found in the economic report:

•Proof of construction expenditures, revenues, tenant occupancy, direct employees, square footage, visitor occupancy, etc.

This presentation outline and the presentation itself are for general educational purposes only and are not intended to provide specific guidance or legal advice about what to do or not to do in any particular case. You should not rely on this general information to make decisions about specific immigration matters. If you are not yourself a lawyer, you should seek the assistance of an immigration lawyer to help you resolve these issues. Thank you.