EB5 Investors Magazine - Page 28

Continued from page 25 “For the segment of immigration that sustains our economy, creates jobs and induces growth, EB immigration statistics are alarming. Employment-based immigration warrants a larger slice of the immigration pie and EB-5 leaders should join the efforts to reform the overall EB immigration system.” For the segment of immigration that sustains our economy, creates jobs and induces growth, EB immigration statistics are alarming. Employment-based immigration warrants a larger slice of the immigration pie and EB-5 leaders should join the efforts to reform the overall EB immigration system. The bigger the overall pie, the bigger the EB-5 slice. I would be amiss not to note that EB-5 industry groups are pursuing considerable and admirable advocacy efforts. But as an industry, we must remember that strength comes from numbers. The EB-5 industry should not isolate itself by focusing solely on advocacy of its immediate interests, that is, EB-5 visa availability. We should build alliances and join the advocacy efforts of other proponents of immigration system restructure that favors employment-based immigration. The second consideration is that of alternative solutions to EB-5 investors’ objective of obtaining LPR. Nonimmigrant visas could meet the investors’ short-term goals, advance their business interests and present a solution to EB-5 LPR unavailability. A small subset of EB-5 investors resides in the United States on an F or H1-B visa. Immigration attorneys should always consider these two visas for their EB-5 clients, with an understanding that they are likely not the best options for the majority of EB-5 investors. The most logical NIV predecessor to an investor’s EB-5 LPR is the E-2 visa for treaty investors. The E-2 nonimmigrant classification provides a renewable nonimmigrant visa to a national of a treaty country who invests a substantial amount8 of capital in a U.S. business.9 Sadly, P.R. China is not a treaty country at this time, so investors from mainland China are not eligible for E-2 visa. (This is another point on which the industry’s advocacy should focus). However, prospective investors faced with visa unavailability may be well suited for the L nonimmigrant visa. There are two types of L visa: L1-A visa for “Intracompany Transferee Executive or Manager” and L1-B visa for “Intracompany Transferee with Specialized Knowledge.” 10 Both types of L1 visa allow a U.S. employer to transfer an executive/ manager or an employee with specialized skills from its affiliated foreign office to its office in the United States.11 More importantly, the L1 visa allows a foreign company that does not yet have an affiliated U.S. office to send an executive/manager or a specialized knowledge employee to the United States to establish a U.S.-based office.12 This ability to obtain an L1 visa in order to set up an office in the U.S. on behalf of a foreign company is likely relevant for some would-be-EB-5 investors. A significant number of EB-5 investors own and operate companies in their home country and, in many cases, their business interests would be advanced through the establishment of a U.S.-branch office. Setting up a company office in the United States would also help the investor transition to a life in the United States and provide them with gainful employment. Additionally, the L visa is considered a “dual intent” visa, thereby allowing holders to pursue LPR status.13 Like the EB-5 visa, L visas allow the principal applicant to bring their spouse and dependent children to the United States. It should be noted that L1 classification is a viable option for EB-5 investors pursuing either regional center or direct EB-5 investment. It is generally accepted that the EB-5 program is attractive to foreign investors and an asset to the U.S. immigration system, but it can be made better. As immigration attorneys and advocates for our clients, we have a role in both changing the immigration law to strengthen the employment- and investment-based visa categories and in guiding our clients through the immigration system to achieve their long-term immigration goals. As EB-5 industry leaders, we should look for synergies with other groups so we can bolster the impact our of advocacy efforts and thus better serve our clients. ★ See http://www.uscis.gov/working-united-states/temporary-workers/l-1aintracompany-transferee-executive-or-manager and http://www.uscis.gov/workingunited-states/temporary-workers/l-1b-intracompany-transferee-specializedknowledge. 11 Id. 12 Id. 13 INA § 214(h) provides that an alien who has sought or will seek permanent residence in the United States is not precluded from obtaining an L nonimmigrant visa (NIV) or otherwise obtaining or maintaining that status. 10 “Substantial amount” of capital is not statutorily defined, but most practitioners agree the amount should be $100,000 or more and proportional to the value of the business in which investment is made. 9 See http://www.uscis.gov/working-united-states/temporary-workers/e-2-treatyinvestors 8 Belma Demirovic Chinchoy 26 EB5 INVESTORS MAGAZINE Belma leads the investment unit of the Immigration Law Offices of Los Angeles, PC. She is experienced in every facet of the EB-5 process and has worked on over 200 successful EB-5 petitions and applications and navigated complicated RFEs for investor and regional center clients. She also provides legal services in EB-5 litigation, E-1/2, H1-B visas, asylum and VAWA cases.