Weird Science: Maddening Visa Policies For World’s Brightest And What You Can Do About It

On the heels of yesterday’s post about the proposed STAPLE Act, today the Washington Post ran a timely article discussing a related obstacle faced by the world’s brightest minds, who would prefer to use their expertise in the United States but due to ill-conceived visa polices and procedures find it all but impossible to do so.

The article, headlined “U.S. Visa Delays Distress Scientists,” talks about the plight of foreign talent eager to get back to work, but who are stuck in their home countries waiting to emerge from the background check black hole so they can get a visa to re-enter the United States. (To read the article you will have to register to read the article, but to do so is free. If you don’t want to register, use a log-on from a site such as http://www.bugmenot.com).

It doesn’t take a genius to figure out the consequences such obstacles are having and will have on scientific research and advancement in the United States. Experts don’t want to sit idle waiting for the U.S. government to decide whether they are worthy of a visa, and research institutions can’t simply put projects on hold until the experts arrive.

Innovation will go elsewhere.

If you want to bring back some common sense and balance to U.S. immigration law, contact your Senators and Congressmen. To learn more about the issues and how to contact your representatives, check out AILA’s Legislation and Advocacy pages, most of which do not require a password to use. Also see AILA’s advocacy arm AILFand AILF’s policy site for additional information, both of which are free to access.

New Database Gives State-by-State Round Up of Immigration Laws

In recent years states have been enacting a rash of new laws addressing immigration issues that affect foreigners and U.S. citizens alike.

In response, the Migration Policy Institute has created a free, searchable data base ofall immigration-related bills and resolutions introduced in state legislatures.

The State Responses to Immigration database classifies information by state, region, subject area, legislative type, and bill status.  For example, you can search the status of enforcement initiatives introduced in a state, compare the number of bills regulating employment, or evaluate the passage rate of health-related bills across the nation.

The database is a joint project of the Migration Policy Institute (MPI) and a research team at the New York University School of Law (NYU).

The site reports that it has posted 2007 legislation and will add data for 2008, in addition to 2001-2006 data, in the coming months.

Other groups which have tracked state efforts to regulate immigration issues include the National Conference on State Legislatures. For information on this group’s efforts see our article here.

Fed Up with the Feds: States Continue Trend of Regulating Immigrants in 2008

The National Conference of State Legislatures has issued its latest report summarizing new legislation related to immigrants and refugees introduced by the states this year.

As of March 31, 2008 at least 1,106 bills have been considered in 44 states, some aimed at integrating immigrants, others aimed at deterring illegal immigration, according to the report.

The level of activity this year is comparable to this same time last year when 1169 bills and resolutions had been introduced as of April 13, 2007.

The top three areas registering the most activity are, as in recent years, law enforcement, employment, and identification documents.

The study identifies the following 10 areas attracting immigrant-related legislation this year: education, employment, health, human trafficking, id/driver’s licenses/other licenses, law enforcement, legal services, miscellaneous, omnibus/multi-issue, public benefits, voting resolutions.

The report is available here: http://www.ncsl.org/print/immig/immigreportapril2008.pdf

Employers Face Stiffer Fines For Immigration Violations

Employers who violate immigration laws will face stiffer fines effective March 27, 2008, announced the U.S. Attorney General’s Office. 

The fines are going up on average 25 percent, which the government says is simply an adjustment for inflation, the last change being in 1999.

Employers may be fined if found to have knowingly employed undocumented works or for other violations, including failing to comply with the requirements relating to employment eligibility verification forms, wrongfully discriminating against job applicants or employees on the basis of nationality or citizenship, and for immigration-related document fraud.

The minimum penalty for knowing employment of an unauthorized alien jumps $100, from $275 to $375. The maximum penalty for a first violation is increasing from $2,200 to $3,200.

The largest hike raises the maximum civil penalty for multiple violations from the current $11,000 to $16,000. These penalties are assessed on a per-person basis; thus, if an employer knowingly employed, or continued to employ, five undocumented workers, he would be subject to five fines.

This increases comes on the heels of ramped up immigration enforcement raids and criminal prosecutions against businesses. 

Business owners object to the new fines, saying they combined with the worksite immigration enforcement campaigns will only increase the likelihood of discrimination against foreign nationals, according to the Dallas Morning News.

What “Business” Can You Do on a B Tourist Visa or Visa Waiver?

While foreign nationals cannot live and work in the United States on a visitor visa (B-1 or B-2) or under the visa waiver program, certain business activities are allowed. As a general matter, the B-1 business visitor visa or visa waiver permits the following activities:

Visitors traveling to the United States to engage in commercial transactions, negotiations, consultations, conferences, etc.

Business that may be conducted on a regular tourist visa or under the visa waiver program include:

A. Engaging in commercial transactions that do not involve gainful employment in the United States (such as a merchant who takes orders for goods manufactured abroad);

B. Negotiating contracts;

C. Consulting with business associates;

D. Litigating;

E. Participating in scientific, educational, professional or business conventions, conferences, or seminars; or

F. Undertaking independent research.

The following specific business activities are permitted if you are entering the U.S. with a regular visitor visa or under the visa waiver program, according to the Department of State Foreign Affairs Manual and other sources as identified below:

1. Members of Board of Directors of a U.S. Corporation

A visitor who is a member of the board of directors of a U.S. corporation seeking to enter the United States to attend a meeting of the board or to perform other functions resulting from membership on the board.

2. Investor Seeking Investment in the United States

A visitor seeking investment in the United States, including an investment that would qualify him or her for status as an E-2 investor. Such a visitor is precluded from performing productive labor or from actively participating in the management of the business prior to being granted E-2 status.

3. Prospective Intracompany Transferee

A visitor coming to open or be employed in a new branch, subsidiary, or affiliate of the foreign employer, if the visitor will become eligible for status as an L-1 (intracompany transferee) upon securing proof of acquisition of physical premises (See CBP manual);

4. Commercial or Industrial Workers

A visitor coming to the United States to install, service, or repair commercial or industrial equipment or machinery purchased from a company outside the United States or to train U.S. workers to perform such services. In such cases, however, the contract of sale must specifically require the seller to provide such services or training and the visa applicant must possess specialized knowledge essential to the seller’s contractual obligation to perform the services or training and must receive no remuneration from a U.S. source.

These provisions do not apply to a visitor seeking to perform building or construction work, whether on-site or in-plant except for an alien who is applying as a B-1 for the purpose of supervising or training other workers engaged in building or construction work, but not actually performing any such building or construction work)

5. Business or Other Professional or Vocational Activities

A visitor who is coming to the United States merely and exclusively to observe the conduct of business or other professional or vocational activity may be classified B-1, provided the visitor is paying for his or her own expenses.

Visitors, however, such as students, who seek to gain practical experience through on-the-job training or clerkships must qualify for an H (skilled worker), L (intracompany transferee)  or J (exchange visitor) visa as appropriate.

6. Employees of Foreign Exhibitors

Employees of foreign exhibitors at international fairs or expositions who are not foreign government representatives ordinarily are classified B-1.

7. B-1 in Lieu of H-3 for Trainees

Visitors already employed abroad, who are coming to undertake training and who are classifiable as H-3 trainees may instead enter on a B-1 if the visitor demonstrates that:

A. The proposed training is not available in the visitor’s own country;

B. The visitor will not be placed in a job which is in the normal operation of the business and in which U.S. citizens and resident workers are regularly employed;

C. The visitor will not engage in productive employment unless such employment is incidental and necessary to the training; and

D.  The training will benefit the visitor in pursuing a career outside the United States;

E. The visitor will continue to receive a salary from the foreign employer and will receive no salary or other remuneration from a U.S. source other than an expense allowance or other reimbursement for expenses (including room and board) incidental to the temporary stay.

8. B-1 in Lieu of H-1B

There are cases in which visitors may be performing services in the U.S., such as assisting briefly on a highly technical project, but who do so under a B-1 instead of an H-1B.

As a preliminary matter, consular officers will require that the work to be done in the United States should be at the H-1B level (i.e. a specialty occupation normally requiring a bachelor’s degree) and the visiting employee should have a bachelor’s degree relevant to the services to be provided. (See e.g. U.S. Consulate in Chennai)

The critical criteria, though, for being eligible for the B-1 in lieu of the H-1B is that the visiting employee must not receive any salary or other remuneration from a U.S. source, other than an expense allowance or other reimbursement for expenses incidental to the visitor’s temporary stay. The remuneration or source of income for services performed in the United States must be provided by a foreign source. In other words, by the business entity located abroad.

Where a U.S. business entity has a separate business enterprise abroad, the salary paid by such foreign entity shall not be considered as coming from a “U.S. source,” according to the Department of State.

Thus, in order for an employer to be considered a “foreign firm” the entity must have an office abroad and its payroll must be disbursed abroad. The visiting employee must be employed by the foreign firm, the employing entity must pay the employee’s salary, and the source of the employee’s salary must be abroad.

*Please note the above list is not comprehensive. Other business-related activities may be allowed. Also, the list does not include the additional activities permitted under NAFTA to Canadian and Mexican citizen visitors.

ICEPIC Details Released; Public Comments Accepted

DHS has published in the Federal Register the official notice and related proposed rulemaking regarding the implementation of ICEPIC, a massive government database of immigration and law enforcement records that it says will help fight terrorism.

The notification provides background on the new information sharing program and the rulemaking involves DHS’ request that ICEPIC be exempt from certain requirements of the Privacy Act that it says is necessary in the name of law enforcement and national security needs.

The notice and the rulemaking both solicit public comments. Comments on the rulemaking are due on or before March 10, 2008. ICE will then issue a new notice that addresses public comments, responds to OMB direction, and includes other ICE changes no later than August 27, 2008. The procedure for making comments is detailed in the DHS notice and rulemaking.

ICEPIC is already in limited operation, according to the notice. ICE says the database will help fight terrorism by enabling officials to link suspected terrorists or other criminals with associates who are in the system.

The database program compiles information on immigrants and other individuals collected from more than nine other federal sources, including DHS and law enforcement records that will be shared with federal, state, local and international law enforcement.

Critics of the program, such as the ACLU, fear innocent people will be arrested due to inaccurate information being captured in the database, pointing to the terrorism watch list as an example. The ACLU explains that if the data is bad, and that bad data migrates from one database to another, innocent people are the victims who are being stopped or labeled as suspicious.

The notification and proposed rulemaking involving ICEPIC (ICE Pattern Analysis and Information Collection) appeared in the Jan. 30 edition of the Federal Register, and are available here:

Notification: text,  PDF

Rulemaking: text,  PDF

For more information, please read our previous article: Big Brother Brightens Beam on Immigrants.

States Cracking Down on Unauthorized Employment; Employers Fighting Back

Lately it seems the media has been teeming with stories on the backlash in states that have introduced legislation requiring employers to use a maligned federal database to verify a worker’s social security number.

In the past year or so, more and more states are contemplating or have already implemented legislation that compels employers to verify work authorization using the federal electronic verification program, called E-verify.

This week alone media reports on opposition to the forced use of the E-verify system included California, Texas, Arizona  and Kansas. Employers in Oregon are also rallying against proposed regulations targeting undocumented workers.

Beware the “Notario”: Tips on Avoiding Immigration Fraud

Horror stories abound in the media about the disastrous consequences caused by “notarios,” “immigration consultants,” and other non-lawyers giving bad immigration advice that causes foreign nationals to permanently lose their rights to stay in the U.S.

Everyone is vulnerable to this exploitation of newcomers. The Colombian-born wife of Georgia State Sen. Curt B. Thompson was on the brink of deportation because she relied on an unscrupulous “notario” to handle her case.

Usually foreign nationals who are the most in need of competent legal advice – those living illegally in the U.S. or who have been arrested and face deportation – are the ones most likely to fall prey to the false promises of a green card from these scam artists.

Part of the reason so many are vulnerable to this type of fraud stems from differences in the structure and regulation of U.S. legal services providers compared to the structure in other countries. The immoral take advantage of these differences to lure their victims. In particular, there are two terms that can confuse foreign nationals seeking immigration help in the US: 1) “Notary” and 2) “Immigration Consultant” or similar title.

Notary, aka Notario, Notaire

In many countries a person who carries the title of notary, (notario in Spanish, or notaire in French), is authorized to provide legal services similar to those performed by a transactional lawyer in the United States. These notaries undergo extensive education and training in their field to earn the coveted title of notary in their country. 

While a licensed notario in Mexico may be competent to dispense legal advice and to provide legal services under Mexican law, a notary in the United States has no such competency or authorization.

In the US, a “notary” or “notary public” has a specific power and purpose: Notaries are appointed by the state government to witness and verify the identity of a person signing a document and to administer oaths. A notary is not qualified to give legal advice at all. Period. Qualifications to be a notary or notary public in the United States typically consist of completing a short training course and little more.

In fact, to avoid the confusion between the two titles many states in the U.S., such as Texas, prohibit the translation of the English title “notary public” into Spanish. 

The confusion between the two terms and the corresponding danger it poses to foreign nationals in the U.S. has prompted the Secretary of State in Texas to post an article detailing the differences between a notary public in the United States and the notario publico in Mexico. 

Legal Consultant v. Immigration Consultant

Another title frequently used by nonlawyers in the U.S. that can mislead foreign nationals is ”immigration consultant” or similar such term.

Many countries have different degrees of regulated legal service providers, one of which may be called a “legal consultant.” These “legal consultants” are legitimate, but have limited authority to provide only certain types of legal advice. They even exist in the U.S., for example, in New York and California.  These are lawyers licensed in other countries who are authorized by New York or California to provide legal advice only in connection with the lawyer’s home country. These consultants generally are restricted from providing legal advice regarding U.S. laws, including immigration laws.

The term “immigration consultant” is reminiscent of these legitimate legal consultants, but while legal consultants are regulated and held to certain professional, ethical standards, those using the title “immigration consultant” historically were not regulated, which enabled immigration fraud to proliferate.

A foreign national may be mislead by this professional and legal sounding title that resemble titles familiar to him from home and think he is dealing with an authorized legal advisor, when in fact, he is not.

In recent years, a few states have cracked down on this type of misrepresentation, either prohibiting use of the term “immigration consultant” or restricting its to only certain, qualified people. Nevertheless, in most states the term remains unregulated, meaning foreign nationals are still at risk of unwittingly relying on the wrong person for help.

Finding Competent Immigration Legal Advice in the United States

Foreign nationals familiar only with their legal system do not realize the unethical people who label themselves as notarios or immigration consultants may not be qualified or authorized to give legal advice in the U.S. The consequences can be tragic, with foreign nationals being deported or trapped outside the U.S. unable to return home to husbands, wives and children.

In the U.S., the only person trained and authorized to give legal advice is a lawyer, also referred to as an attorney-at-law. No other person is competent to give legal advice. If a non-lawyer gives legal advice he or she can be charged with the unauthorized practice of law in the state.

Organizations throughout the U.S. are stepping up efforts to educate the public about the unauthorized practice of law and the dangers of relying on legal advice by nonlawyers such as the American Bar Association (ABA)  and AILA (the American Immigration Lawyers Association).

In a public service information piece, the ABA identifies these titles as red flags for those seeking immigration assistance:

• Notario
• Notario Publico
• Visa Consultant
• Immigration Consultant

Other red flags the ABA cites include:

* The person told you that you could get a green card or other benefit for which you were never eligible. 

* The person said he or she could get you special treatment from a government agency such as Citizenship and Immigration Services (USCIS) or Immigration & Customs Enforcement (USICE).

* The person kept your original documents and/or your court notices and made you pay a fee in order to get them back.

* The person asked you to sign blank forms.

* The person took your money and did not provide you with any services.

* The person falsely told you he or she was a licensed attorney.

AILA has published a brochure on how to find competent immigration advice. AILA’s brochure provides the following tips:

1) Use common sense. Many people hear what they want to hear-be smart! If it sounds too good to be true, it probably is.

2) Don’t believe it if someone tells you about a secret law or claims to have connections or special influence with any agency.

3) Don’t pay money to someone to refer you to a lawyer.

4) Walk away if a lawyer doesn’t have a license.

5) Never sign an application that contains false information, and try to avoid signing blank forms. If you must sign a blank form, make sure you get a copy of the completed form and review it for accuracy before it is filed.

6) Always get proof of filing-a copy or government filing receipt-when anything is submitted in your case.

7) Insist on a written contract that details all fees and expenses and make sure you receive a receipt, especially if you pay cash. If terms change, get a written explanation.

8)  Don’t let anyone “find” you a sponsor or spouse to get you a green card-it’s illegal.

While some may view these warnings by lawyers about nonlawyers to be self-serving (and it is), the warnings are also equally necessary to educate the public so each person can make an informed choice before deciding to engage a lawyer or nonlawyer to assist with an immigration case.

Where to Find Help

If you think you have been a victim of an immigration scam artist, seek professional legal help immediately from an immigration attorney. To find a qualified immigration attorney in your area, you can contact AILA toll free at 1-800-954-0254 or online at http://www.ailalawyer.com/.

Another resource for immigration assistance is an “accredited representative.” An accredited representative has been recognized by the U.S. government as having the skill and training to assist people with their immigration matters. These representatives work with a nonprofit community or religious organization. A list of accredited representatives is available at www.usdoj.gov/eoir/statspub/raroster.htm.

For free or low-cost immigration legal services, the ABA also provides a state-by-state directory.

More information about fraudulent immigration scams in English and Spanish (Español), are available through the following resources:

English

* ABA: The Dangers Of “Notario” Fraud

* AILA: Protect Your Dreams!

* Catholic Legal Immigration Network, Inc.

Español

* ABA: El Peligro De Fraude De “Notario”

*AILA: ¡Proteja Sus Sueños!

* Catholic Legal Immigration Network, Inc.: Cuidado Con Los Notarios

Summary of State Laws Reacting to Undocumented Immigrants

In the wake of Congress’ failed comprehensive immigration reform bill effort, states increasingly have been tackling these issues locally, resulting in a patchwork of divergent laws across the country.

These state regulations cover a variety of areas targeting both undocumented foreign nationals and the employers who hire them. The approaches vary greatly, some friendly, some hostile. Many end up as the subject of lawsuits, their legality under federal or state law being questioned.

For example, Arizona now requires all employers to use the controversial “E-Verify” system to check an employee’s legal status, while a new Illinois law prohibits employers from using “E-Verify” until the U.S. government proves it is 99 percent accurate. Both laws are under attack in court.  

Stateline.org has compiled a comprehensive summary of state laws touching on immigrants and immigration issues, including employer sanctions, access to public benefits, in-state tuition, driver’s licenses, and local law enforcement collaboration with federal immigration authorities. (A state-by-state chart is also available on the site.)

The article observes that the harshest laws are coming out of states which only recently began experiencing an influx of immigrants, whereas states that have a history of immigration are generating laws that are more accommodating.

Immigration is an area that normally falls under the responsibility of the federal government to regulate, not the states. 

For more information, see our other article providing a related round-up of state legislation relating to immigration and immigrants: Survey Shows State Legislation Relating to Immigration Skyrockets in 2007.

DV (Green Card) Lottery Applications Due by Dec. 2, 2007

It’s that time of year again. The Department of State is accepting applications for its annual visa lottery.

The Diversity Visa (DV) Lottery 2009 application and instructions are available on the DOS website. Applications will be accepted through noon (12 p.m.), Eastern Standard Time, Sunday, Dec. 2007.

The DV Lottery is the annual program that provides a maximum of up to 55,000 immigrant visas each fiscal year to randomly selected eligible persons from countries with low rates of immigration to the United States.

The eligibility requirements to enter the lottery are simple. The applicant must have either a high school education or its equivalent, defined as successful completion of a 12-year course of elementary and secondary education; OR two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform. Whether an occupation requires the two years or more of training is determined by the U.S. Department of Labor via the O*Net OnLine database.

Applicants must strictly follow the application process, including photo requirements, or the entry will be rejected. In addition, only one entry per applicant may be filed. If an applicant files more than one entry, the applicant will be disqualified.

Applications may be filed only online. Paper submissions are not accepted.

Individuals born in the following countries are NOT eligible to apply because they have sent more than 50,000 immigrants to the U.S. over the period of the previous five years:

Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Peru, Poland, Russia, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. However, persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible.

Please note that if you were born in one of the above ineligible countries, you may still be eligible based on your spouse’s or a parent’s country of birth. The DV Lottery instructions contain more information about the requirements for eligibility in this situation and should be read carefully.

Winners will be notified by mail between May and July 2008 and will be provided further instructions at that point. Those selected in the random drawing are NOT notified by email. Every year, spam emails circulate the world claiming the recipient to be a DV Lottery winner. These emails are fraudulent and should be reported to the U.S. government.

There is NO fee for entering the DV Lottery. Lottery winners, though, will have to pay the visa fee applicable to their country if they are approved.

Applicants should be skeptical of any unsolicited offers to apply on their behalf or making guarantees of winning. While there are legitimate companies that offer useful information about the DV Lottery and assistance with the technical requirements, some are scams preying on the hopeful. Accordingly, the U.S. government has issued this warning in its instructions:

Some websites may try to mislead customers and members of the public into thinking they are official websites and may contact you by email to lure you to their offers. These websites may attempt to require you to pay for services such as forms and information about immigration procedures, which are otherwise free on the Department of State Visa Services website, or overseas through the Embassy Consular Section websites. Additionally, these other websites may require you to pay for services you will not receive, often including diversity immigration application and visa fees in an effort to outright steal your money. Once you send money in one of these scams, you will never see it again. Also, you should be wary of sending any personal information that might be used for identity fraud/theft to these websites.

If you receive an email solicitation by someone claiming to be the U.S. government, in particular, first look at the email or any referenced website address. The only official government internet sites on the DV Lottery are those with the “.gov” indicator. All others are fraudulent and should be reported to any one of these sites: econsumer.gov, a joint effort of consumer protection agences from 17 countries, or the Federal Bureau of Investigation (FBI) Internet Crime Complaint Center or IC3. Any other internet fraud related to the DV Lottery should also be reported to those sites. To file a complaint about unsolicited email in particular, go to the Department of Justice anti-spam site.

Furthermore, regardless of any claims made by one of these services, whether you pay someone to fill out and submit the application for you, or you do it yourself, your chance at winning is the same, provided you have completed the application properly.

For more information about the DV Lottery 2009 program, the State Department has posted detailed instructions on its website. Read them carefully, follow them precisely and …

Good Luck!

EB – 5 Permanent Residency through Investment

Overview

Permanent residency (green card) is available to foreign nationals who are investing in a new commercial enterprise that will benefit the U.S. economy and create needed employment opportunities within the United States.

General Requirements

Where must the money be invested?

The foreign national Investor must be investing in a “new commercial enterprise.”  The regulations consider any one of the following activities to constitute a “new commercial enterprise:”

• creating a new business;

• investing in a business that was established after Nov. 29, 1990;

• purchasing a business that was established prior to Nov. 29, 1990 and simultaneously or subsequently restructuring or reorganizing the business such that a new commercial enterprise results; or

• investing in a business that was established prior to Nov. 29, 1990 and expanding it by 40 percent of the pre-investment number of employees or net worth.

How much money?

To qualify, the Investor must invest at least:

• $1 million anywhere in the United States; or

• $500,000 in an area where 1) the unemployment rate exceeds the national average unemployment rate by 150% as designated by the State or 2) a rural area. A rural area is an area outside of a metropolitan statistical area (MSA) or an area outside of a city or town having a population of 20,000 or more. MSAs are designated by the Office of Management and Budget.

Also, the money must come from a “lawful source of funds,” which means the Investor should have extensive documentation how he or she obtained the money, whether it be earnings, a gift from family, the sale of property, etc.

How many jobs?

The rationale behind providing for this type of immigration is to improve the U.S. economy. As such, the criteria for establishing whether an investment will qualify focuses on job creation. In general, the regulations state that if the Investor is starting a new business, or buying at existing business, at least 10 new full-time positions must be created. In the case, however, of an Investor who is expanding an existing business where a 40 percent increase in employees or net worth must be shown, if the net worth requirement cannot be met, then the Investor mush show a 40 percent increase in employees, meaning potentially more than 10 jobs must be created.

If investing in a “troubled business,” instead of hiring 10 people, the employment criteria can be met by maintaining the number of existing employees at no less than the pre-investment level for a period of at least two years. A “troubled business” is one that has been in existence for at least two years and that has lost 20 percent of its net worth over the past 12 to 24 months.

What is the Investor’s role in the enterprise?

The regulations state the Investor must have more than a passive role in the business. The Investor must be active, either through the exercise of day-to-day managerial control or through policy formulation. The regulations state that serving on the board of directors, as a corporate officer, or as a limited partner meet this criteria.

It should be noted that the Investor is not required to live in the area where the money is being invested.

Other eligibility criteria

The new enterprise must “benefit” the U.S. economy. This fact generally can be established by showing the entity provides goods or services to the U.S. market. If, however, the entity is a consulting firm exclusively serving clients overseas, that activity may not be sufficient to support a petition.

 

Special Pilot Program/Regional Centers

The Immigrant Investor Pilot Program is designed to encourage foreign investment by providing a vehicle for investment in the form of an economic unit called a “Regional Center.” The Regional Centers are private or public entities that have received government approval to participate in the program. They enable the amassing and pooling of capital for targeted investment in designated regions in the United States.

For the Investor, these Regional Centers are attractive because they allow for a less restrictive job creation requirement. Instead of having to prove direct job creation, the investor may show indirect job creation through such methods as economic and statistic forecasting tools.

Please note that this pilot program expires in November 2008 unless reinstated.

For a list of active Regional Centers, please see our other article on this blog listing the Regional Centers for the EB-5 Immigrant Investor Pilot Program.

Family Members

Dependent family members (spouse and children under age 21) may be included in the Investor’s immigration petition.

Application Process

File Form I-526, Immigrant Petition by Alien Entrepreneur. The Form I-526 must be filed with supporting documentation which clearly demonstrates that the individual’s investment meets all requirements. This documentation will need to be extensive to establish all the program requirements.

If the Investor is already in the United States, once the Form I-526 is approved, Form I-485, Application to Register Permanent Residence or Adjust Status must then be filed to obtain conditional permanent residence status.

If outside the United States, upon receiving the approved I-526 petition, the Investor must schedule an appointment with the U.S. embassy and apply for an immigrant visa.

Removing Conditions

In order to become a lawful permanent resident, eligible Investors must file a Form I-829, Petition by Entrepreneur to Remove Conditions. Form I-829 must be filed within 90 days before the second anniversary of the Investor’s admission to the United States as a conditional resident. Failure to file this petition will result in automatic termination of status and initiation of removal proceedings.

Quotas

There are 10,000 investor visas available annually. Of these, 5,000 are set aside for those who apply under the Pilot Program involving the government-designated Regional Centers. To date, the quotas have never been exceeded.