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
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.
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.
“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.
Belma Demirovic Chinchoy
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.