Month: July 2019

by David Tuteur David Tuteur No Comments

It Only Takes $1.8 Million to Get a Green Card

DHS releases updates to EB-5 Investor Visa Program.

100 Chinese yuan banknotes

Do you just happen to have $1.8 million lying around? If so, you might be eligible for an EB-5 visa. For the first time since 1992, the Department of Homeland Security (DHS) is updating the rules for the EB-5 investor visa program, which will go into effect in November of this year.

The EB-5 investor visa program was first enacted in 1990 as a way to attract foreign investors to the U.S. economy. Investors and their family members are eligible to apply for a Green Card and gain permanent resident status if they invest the required amount and create at least 10 full-time permanent jobs in the process. In 1992, Congress created the Regional Center Program, which allows some entrepreneurs to invest in designated regional centers that are meant to promote economic growth and job creation.

The EB-5 Program has a limit of 9,940 visas available annually and also limits the percentage that can be allocated to certain countries each year. At least 3,000 EB-5 visas must be reserved for TEA (Targeted Employment Area) investors. TEAs are meant to address locations with the most economic need and include rural areas and areas with high unemployment rates. Just as with any other visa, the demand for EB-5s is high. Priority dates are current for all countries except China, India, and Vietnam, which are backlogged to the year 2014. The majority of applicants are Chinese investors, who make up approximately 85% of EB-5 visa holders.

Updates to the EB-5 Program

The EB-5 Program has remained unchanged for almost 30 years. The DHS is finally rolling out updates, including changing the required minimum investment from $1 million to $1.8 million and increasing the minimum TEA investment from $500,000 to $900,000 to account for inflation. The amounts will increase every 5 years according to inflation to ensure that the program stays current.

Under the updated program, designation of high-unemployment TEAs will now be directly reviewed by the DHS, instead of deferring to state and local governments. The definition of high-unemployment TEAs has been clarified to include non-metropolitan towns with populations of 20,000 or more with an average unemployment rate of at least 1.5 times the national average.

The updates also allow investors to use the earliest available priority date, meaning that if an investor already has an approved EB-5 application, their priority date for that application effectively rolls over to their newly filed EB-5 application.

Problems with Fraud

The updated program doesn’t make changes to policies regarding fraud, which has been an ongoing problem with the EB-5 program since its inception. Investors continue to be vulnerable to scams that promise them a visa and guaranteed returns on their investments. In recent years, the major suits brought by the SEC (Securities and Exchange Commission) against EB-5 defrauders include $350 million against a Vermont ski resort, $125 million against a Seattle skyscraper developer, and $89 million against a Chicago immigration attorney.

Since policies preventing fraud remain unchanged, it is still up to individual investors to ensure the integrity of the programs they’re investing in. Back in 2013, US Citizenship and Immigration Services (USCIS) and the SEC issued an alert to investors and instructions on scam avoidance that can still be helpful today. Some of these guidelines are listed below.

Investor Tips for Avoiding EB-5 Fraud
  1. Know the warning signs of fraud, including promises of visas, guaranteed returns on investment, or representations that there is zero investment risk.
  2. Confirm that the regional center is USCIS-designated.
  3. Request copies of the center’s past investment information.
  4. Ask if promotors of the center are being paid.
  5. Seek independent verification of records, such as permits, tax assessments, and confirmed investment from other companies.
  6. For the complete list, read the full 2013 Investor Alert.
by David Tuteur David Tuteur No Comments

Not Your Grandfather’s Immigration System

A brief history of immigration restrictions in America and how they have changed over time.greyscale photo of men

If you are an American citizen, there’s a pretty strong chance that you are descended from immigrants. Different generations of immigrants have had to face their own unique sets of problems, but many would find today’s immigration system virtually unrecognizable.

Barriers to Entry

While the 18th and 19th centuries posed physical barriers to immigration, such as the Atlantic Ocean, it turns out that many of these immigrants did not face any legal barriers to entry into the United States once they arrived. In fact, it wasn’t until 1875 that the U.S. enacted its first restrictive immigration statute, which banned entry to criminals, and later included people with contagious diseases, anarchists, beggars, polygamists, and traffickers of prostitutes. Up until 1875, the only action a person had to take in order to immigrate lawfully was to show up.

Starting in 1882 and continuing through 1943, Chinese laborers were banned from immigrating to the United States, and from 1917 through 1952, the U.S. banned immigrants from most Asian countries.

The 1996 Illegal Immigration Reform and Immigrant Responsibility Act increased enforcement with mandates to build fences on the Southwest border. Under the 2002 Homeland Security Act, the duties of the U.S. Immigration and Naturalization Service (INS) were transferred to the newly created Department of Homeland Security (DHS), which now includes Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), and U.S. Citizenship and Immigration Services (USCIS). Created in response to 9/11, the DHS is actually the United States’ youngest cabinet department.

Barriers to Citizenship

Historically, one of the largest barriers to citizenship was race. Under the 1790 Naturalization Act, a free white person could naturalize after 2 years of residence if they possessed “good moral character.” This act formally barred citizenship to any non-white person.

After the Civil War, the Naturalization Act of 1870 allowed people of African descent to naturalize. It wasn’t until the 1952 that race was removed as a legal exclusion to immigration and naturalization.

Now, becoming a United States citizen involves an extensive ten-step process that includes filling out form N-400, completing a personal interview, and passing the U.S. Naturalization Test.

History of Deportation

In the past, deportation was limited to those who posed a serious danger to society. The 1798 Alien Friends and Enemies Acts were the first acts to authorize deportation of immigrants and included those who were either deemed dangerous to the U.S. or were citizens of a hostile nation during wartime. A version of the Alien Enemies Act is still in effect today.  The 1882 Chinese Exclusion Act allowed the deportation of unauthorized Chinese immigrants.

Now, grounds for deportation apply to people who violate any law, including non-violent crimes and misdemeanors, and even those who fail to fill out a change of address form. From 1996 through today, policies enforcing deportation have been widespread, with roughly 5.77 million people deported between 1997 and 2016.

Introduction of Quotas

The concept of quotas is relatively new. The 1921 Emergency Quota Act was the first to create nationality-based immigration quotas with a cap of 350,000 that did not apply to countries in the Western Hemisphere. In 1924, the cap was almost cut in half at 165,000, and only people eligible to become citizens (whites and people of African descent) were allowed entry into the U.S.

Following the Chinese Exclusion Repeal Act of 1943, roughly 105 Chinese immigrants were allowed to immigrate each year. In 1952, Asian countries were granted a minimum quota of 100 visas per year.

In 1965, a new system was created favoring skilled immigrants and family reunification over quotas. The system also imposed the very first limits on immigration from the Western Hemisphere.

Now, USCIS often places a cap on the number of visas available, and different skillsets and personal situations are prioritized based on the availability of certain types of visas, making the U.S. immigration system one of the most selective and difficult to navigate in the world.

by David Tuteur David Tuteur No Comments

Keeping an Eye on the I-9 Minefield

Employers see first return of no-match letters since 2011.white printer paper

This March, the Social Security Administration (SSA) started sending letters to employers whose name and social security number (SSN) for one or more of their employees do not correspond to SSA records, also known as “no-match” letters. No-match letters might come about due to typographical errors, unreported name changes, or inaccurate or incomplete employer records.

Navigating the I-9 process is already complicated, and employers who violate these requirements can face fines and serious criminal charges. While receiving one of these letters isn’t immediate cause for alarm, it certainly is something to take seriously.

Though no-match letters are issued by the SSA, they arose out of I-9 audits by ICE that took place over the past two years and will likely lead to immigration enforcement. Unbeknownst to some employers, these I-9 audits were probably driven by leads that ICE received from various enforcement tools, like undercover work, E-Verify, USCIS application processing, and identity theft complaints. ICE believes that under certain circumstances it can request no-match data from the SSA. While there is a defense to this claim, ICE still may be able to access no-match data during the course of an I-9 audit.

What to do if you receive a no-match letter

 

For Employers

  • Should I respond to the no-match letter?
    • Yes. The new policy gives employers 60 days to respond. As noted above, the discrepancy might just be a typo or an oversight. However, in the case that the letter points to an employee who is unauthorized to work in the U.S., an unaddressed no-match letter can partially show that you had constructive knowledge of the situation, which could lead to criminal prosecution of your corporation, executives, and/or managers.
  • What process should I follow?
    • Check the reported information against your records.
    • Inform the affected employee that you have received a no-match letter.
    • Ask the employee to confirm their name and SSN for your records, and submit any corrections to the SSA.
    • Advise the employee to contact SSA and correct or update their SSA records.
  • What other information do I need to know?
    • Be sure to give the employee a reasonable amount of time to address the no-match with the SSA, but you can also check in on their progress periodically.
    • Do not attempt to request that the employee immediately fill out a new I-9 based on the no-match letter, and do not ask the employee to produce specific I-9 documents.
    • Be sure to follow the same procedures for all employees in a fair and non-discriminatory manner.

For Employees

  • What process should I follow?
    • If you receive a no-match letter at home, do not notify your employer, as your employer might not have received a letter.
    • If your employer informs you that they have received a no-match letter for you, ask for a copy of the letter and your W-2 form.
    • Confirm whether your name and SSN match their records, and provide any corrections to your employer and the SSA, if applicable.
    • Don’t lie. If you showed your employer false ID or work authorization documents when you were hired, do not show these same documents to your employer again, as this can get you in legal trouble.
  • What are my rights?
    • Like all people working in the U.S., you have the right to:
      • Remain silent about your immigration status
      • Work without retaliation
      • Organize with coworkers
      • Be compensated for your work
    • Keep in mind that your employer cannot terminate or suspend you based solely on their receipt of a no-match letter.
    • Your employer also cannot ask you for proof of your immigration status or your eligibility to work based solely on their receipt of a no-match letter.
  • How can I protect myself?
    • First, keep calm and do not quit your job. Remember that receiving a no-match letter does not mean you are unauthorized to work in the U.S.
    • Do not talk to anyone at work about your immigration status, as it could cause legal problems for both you and them.
    • Tell your employer that you want someone else present in meetings about the letter, including a coworker, community advocate, or union representative.
    • Reach out to a community organization, like the Colorado Immigrant Rights Coalition, for support.
    • If you’re part of a union, contact your union representative right away, as you may have additional rights as a union member.
    • Click here to see the National Immigration Law Center’s “Know Your Rights” web page.
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