EB-5

Anyone waiting in the line to adjust their status to that of a Permanent resident has clearly felt the effects of a broken immigration system.  Many applicants have been forced again to start the year off  with a foot in the past due to the lack of movement in the January 2009 Visa Bulletin . Many pending applicants and hopefuls wanting to permanent residence, are stuck in a backlog that may take years to overcome.  Those aliens waiting in the second and third preference categories from China and India have the worst deal yet.   

Many supporters of president-elect Obama are hoping for some type of Immigration Reform legislation in 2009.  Many politicians are aware of the long lines and hold-ups involved in the immigration problem however nothing has been done to solve this problem. One thing for sure is the need for immediate action to provide adequate medical care. Such relief can be found in nurses and other health care professionals who are also stuck in a four year retrogression of visa numbers.

So what can be done to avoid the uncertainty and slothful movement of employment-based priority dates?  Applicants could always consider the EB-5 category for immigrant investors. Annual allocation of visas in the EB-5 category is 10,000, not less than 3,000 of which are reserved for investors in so-called Targeted Employment Area’s and 3,000 reserved for investors in USCIS designated Regional Center’s (“RC’s).  There is no current backlog in the EB-5 category, nor has there ever been. For more information on how you may qualify in the EB-5 Category contact our office. 

The fifth employment based preference (EB5) category is designed specifically for Employment Creation.. To qualify, a foreign national must invest between $500,000 and $1,000,000.00 depending upon the employment rate in a specific geographical location. The national must invest in a commercial enterprise in the U.S. that will create at least 10 new jobs for U.S. citizens, lawful permanent residents, or other lawful immigrants, not including the investor and his/her family. Accordingly, the regulation at 8 C.F.R. §204.6(j) states that to show that the petitioner has invested or is actively in the process of investing the required amount of capital, the petition must be accompanied by evidence that the petitioner has placed the required amount of capital at risk for the purpose of prospective investment arrangement entailing no present commitment, will not suffice to show that the petitioner is actively in the process of investing. The alien must show actual commitment of the required amount of capital. Regulations define Capital as cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. Additionally, the regulations define Invest as to contribute capital. A contribution of capital in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement between the alien entrepreneur and the new commercial enterprise does not constitute a contribution of capital for the purposes of this part.

The Administrative Appeals Office (AAO) recently dismissed an appeal  in which the petitioner sought classification as an alien entrepreneur pursuant to section 203(b)(5) of the Immigration and Nationality Act. The director of the Texas Service Center initially denied the petition because the petitioner failed to demonstrate a qualifying investment of lawfully obtained funds, and this appeal followed.