Frequently Asked Questions: Visas, Green Cards & Investment Immigration Law

The timelines for preparing an EB-5 investment visa requires a lot of thought and planning for the petition itself. As it happens, life events also can change the timelines of planning for an EB-5 visa. In our case study today, we had a reader pose this question:

I’m currently researching the EB-5 entrepreneur visa and am interested in the EB-program. I plan on marrying my fiancée in the near future but I’m wondering if I should marry her before I apply for the EB-5 visa or after I am approved for the EB-5 visa and am in the process of applying for my green card. Obviously, I would like my future wife to be able to get a green card as well but not sure how the timing of when I file my EB-5 visa might impact how long she waits to get a green card.  Your assistance is much appreciated.

-Wondering Fiancé

In this case study, it’s a good thing that Wondering Fiancé did a bit of research and asked about his situation.  His primary concern is that the current wait times for spouses of green card holders is especially long. He’s correct to be concerned.

The way U.S. immigration laws are currently structured, a green card holder interested in sponsoring his/her spouse for a green card must first file a petition for an immediate relative (Form I-130) and then wait for the petition to be approved by USCIS.  After the petition is approved, the spouse can then apply for his/her green card but may wait for years before the application is even reviewed, due to current visa backlogs.  What’s worse is that nationals from China, India, the Philippines or Mexico may have to wait even longer according to the visa bulletins that the Department of State issues every month.

Many have complained that forcing immediate relatives (i.e.: spouses and children) of green card holders to wait years to be reunited with their family in the U.S. makes no sense when it comes to family unity.  The good news is that last year, U.S. Senators passed a bill, S.744, that would eliminate this long wait time and treat spouses and children of green card holders the same as spouses and children of U.S. citizens (meaning no waiting time).  Unfortunately, the bill has languished in the House of Representatives with no advancement.  Until Congress decides to finally pass a law to change our broken immigration system, immediate relatives of green card holders must endure the long wait before they can be reunited with the family.

If Wondering Fiancé married his fiancée after his EB-5 visa was approved and after he had already applied for and was approved for his green card, then his new wife would be waiting quite a long time (current wait times as of this article are approximately one year four months under the F2A preference category).

If Wondering Fiancé married his fiancée before he applied for his green card, and preferably before he applied for his EB-5 visa petition, he would be able to include her as his spouse on his green card application. That way, she would only be waiting the same amount of time he would be to get their green cards together.

In May 2013, USCIS issued, for the first time, a policy memorandum for its internal officers, on the EB-5 Program and how to approach adjudication of EB-5 visas from foreign investors.  In that memo, USCIS indicated it would be working with the Fraud Detection and National Security Directorate to ensure the EB-5 program’s integrity when it comes to cases relating to fraud, national security, and public safety.

It is critical to our mission to ensure that we administer the EB-5 program with utmost vigilance to program integrity. Our operational teams work in collaboration with the Fraud Detection and National Security Directorate and cases presenting issues relating to fraud, national security, or public safety should be referred as appropriate to law enforcement and regulatory authorities. 

What exactly is the Fraud Detection and National Security Directorate (FDNS)? 

The directorate’s mission is to:

Enhance the integrity of the legal immigration system by identifying threats to national security and public safety, detecting and combating immigration benefit fraud, and removing systemic and other vulnerabilities.

The FDNS works similarly to an investigation unit in any large corporation by auditing petitions and applications, making site visits, and generally making sure that whatever factual information that has been submitted to USCIS is, in fact, correct and true.  When an investigation leads to contradictory information, FDNS can pass that information to USCIS to initiate a reopening of a previously approved case, for further review or potential revocation of a prior approval.

Officers within the FDNS also resolve background check information from foreign national applicants with law enforcement agencies using an internal database (FDNS-DS).

No Exceptions to a Detailed Background Check

In general, all EB-5 investors are subjected to a detailed background check when a petition is submitted to USCIS.  There are no exceptions.  For EB-5 investors who have a relatively stable and clean criminal record, there should be little to be concerned.  However, EB-5 Investors who have a long or complex political history, or have blemishes related to criminal conduct in the past should consult with an experienced immigration attorney prior to committing any funds to an EB-5 project in the U.S.  Your past political or criminal history may subject you to a legal bar from getting approved for a green card.  While some legal bars allow for a waiver, others may not.  Therefore, it is critical that EB-5 investors inquire regarding their eligibility.

At the Jatoi & de Kirby, A.P.C., we know how important it is for you to get all the information necessary to qualify for an EB-5 visa.  Contact us today for more information.

With the holidays upon us, you may be tempted to leave the U.S. for a few weeks to visit family or friends in your home country.  Before you purchase your plane tickets though, it may be wise to check that your current visa status will allow you to reenter the U.S. after your holiday travels.  Here are our top 3 items to check before you embark on your journey outside the U.S.:

1. Do you have a valid visa stamp in your passport?  The visa stamp in your passport will be checked by a Customs Officer when you arrive back into the U.S. at a land port of entry or at an airport.  If your stamp is going to expire while you are abroad, you may need to renew the visa.  Or, if you originally entered the U.S. in one status and then changed your status (example: F-1 status changed to H-1B status), then you may need to apply for a new visa stamp in order to come back into the U.S.  For certain immigrants, a visa stamp may not be necessary at all.
2. Do you have a pending petition or application with USCIS?  Currently, the U.S. government’s general rule is that once a petition or application has been filed with the U.S., you should remain in the U.S. and not travel internationally, otherwise your petition or application may be deemed “abandoned.” For example, if you are currently applying for your EB-5 visa and you are already in the U.S., you may need special permission to travel while your visa petition is pending with the government.  
3. Did you overstay your visa? Did you enter the country in one status but stayed in the U.S. even after your status expired?  Depending on how long you overstayed your visa, if you leave the U.S., you may be barred from reentering the U.S.

How can you tell if any of the three issues above might affect your international travel plans?

At Jatoi & de Kirby, A.P.C., we know how important it is for you and your family to maintain your valid immigration status while still being able to visit family and friends overseas. Our immigration attorneys can advise you on how best to travel, allowing you peace of mind during the holidays.  Contact us for more information. 

Related Links: Avoid Overstaying an F-1 Visa: Update Your Arrival/Departure Record! San Francisco Immigration Attorneys Discuss Working with an F-1 Visa

Yes. If you overstayed a student F-1 visa for more than 180 days, you will be barred from returning to the United States for either three or ten years, depending the length of overstay. Even if you are approved for another type of visa, you will be prohibited from returning to the U.S. until the time period that you have been banned has past.

Unfortunately, that’s not the only punishment aliens may face when overstaying a visa. Even after the three or ten year ban to re-entry has passed, USCIS will examine and evaluate the fact that you previously overstayed a visa when determining your “nonimmigrant intent” for future visa approval. Any period of overstay could result in the denial of future visa applications.

As trusted immigration attorneys, we know there are many reasons F-1 students may not be able to avoid overstaying the length of their visa. For example, a student may be able to extend his or her stay and avoid a ban on reentry to the U.S. if they:

• Have pending good faith asylum applications at USCIS at the time of visa expiration
• Qualify for asylum due to personal danger—such as battered spouses and children
• Applicants who are awaiting decisions on pending change of status, extension, or adjustment of status petitions

Related Links: Which P Visa Do I Need? Can My Spouse and Children Come With Me?

As immigration attorneys at Jatoi & de Kirby, A.P.C., we help foreign coaches and trainers obtain visas to accompany their athletes, who will be competing in the United States. As a trainer, you may be considered part of the athlete’s essential support personnel and qualify for a P1-S visa. These individuals include coaches, trainers, referees, scouts, and other team officials who are necessary to the performance of the traveling athlete. The United States Citizenship and Immigration Services (USCIS) allows support personnel to travel with a P-1 athlete as long as:

• The individual is an integral part of the P-1 athlete’s player performance
• The individual performs support services that cannot be easily performed by a U.S. worker

In order to obtain a P1-S visa for coaches and trainers, your athlete’s employer must file a Form I-129 for support personnel on your behalf, including the following documents:

• A copy of the written contract between the employer and the support person outlining the nature of employment and essential services provided
• A statement that clearly describes the support person’s necessary skills and essential nature, including how the support person has provided essential benefits in the past and his current level of experience with the P-1 athlete or team
• A written consultation or evaluation from an appropriate labor organization that has demonstrated expertise in the support person’s specialty

If you are granted a P1-S visa, you may stay in the U.S. for up to one year in order to assist your athlete or team in a U.S. performance or competition. Extensions may be granted in yearly increments, but the maximum stay under this visa is limited to 10 years.

Related Links: Deciding Between the EB-1 and O-1 Visa Differences Between the EB-1 and O-1 Visa for Actors Satisfying the Requirements for an EB-1 Actor’s Visa

As an immigration law firm, we regularly help actors who wish to work in the United States and we understand how confusing the process can seem. Basically, the information you provide to the U.S. Citizenship and Immigration Services (USCIS) depends on the type of visa for which you are applying. While there are many EB visa forms, actors will usually apply for an EB-1 visa—Extraordinary Ability, first preference.

Many of the documents you will provide to the USCIS will involve evidence of your extraordinary ability as a performer. If you have sufficiently demonstrated your qualifications, you will have essentially addressed your ability to find work and continue working in the United States. This means you will NOT have to go through the process of:

1. Proving employment. Although an EB-1 visa is employment-based, you do not need to have a job offer to be approved. USCIS accepts that you are highly qualified and are likely to find employment.
2. Labor certification. Some EB applicants (EB-2 and EB-3) will have to complete a labor certification process to prove there are no qualified U.S. workers who could potentially fill the positions for which you qualify. As an EB-1 visa applicant, you are demonstrating that you are uniquely positioned to perform your role.

It depends. Immigrants who have filed for  adjustment of status(AOS)—Form I-485—are able to work as long as they have acquired an employment authorization document. It may take some time for USCIS to process your application, so it is important that your work authorization extends for the full length of time it takes to grant you your adjustment of status.

 

Here are a few things to remember about filing for adjustment of status:

 

• All applicants who wish to work with a pending AOS must obtain employment authorization unless they were admitted to the U.S. under a non-immigrant status that allows them to work, such as H-1B.
• Employment Authorization Document (EAD) can be concurrently filed with your AOS application.
• Employment authorization applications typically take 90 days to be adjudicated. If the immigrant’s application requires additional information or extended background checks, the decision may take longer.
• Applicants may be granted up to 2 years of employment authorization while the AOS process is completed. If the application process takes longer than two years, the applicant may renew his/her EAD.

 

It is important to keep your work authorization current and to apply for a renewal well in advance of an expiry date. Any length of U.S. employment without authorization may jeopardize your visa status and your family’s ability to apply for permanent residence. If you are unsure of your work status, our attorneys can advise you on what steps you need to take to maintain legal residency.

 

Feel free to contact us for more information.

Related Links Proving your income source for a California EB-5 escrow account Proving a loan as lawful source of investment funds for your EB-5 visa

While it is not required, many foreign investors will choose to use an EB-5 escrow account to transfer the initial amount of funds to their selected business.

An escrow account is an interest-bearing bank account. This type of account is typically used to keep large amounts of money for sales of real estate, property, and businesses secure until all transactions are complete. In the case of an EB-5 investment, the business or regional center establishes the escrow account and the investor transfers the required amount of funds. The money is held in the account until official notification from USCIS that the petition has been received or approved, at which time the investment funds are disbursed to business or project.

In order to hold your EB-5 funds in an escrow account, you must ensure that:

• It is stated in the escrow agreement that the entire amount of required capital will be committed to the regional center or new commercial enterprise, and that funds will be immediately disbursed upon either receipt or approval of the investor’s EB-5 petition.
• The bank or financial institution where the account is established must have no relationship to the immigrant, the new commercial enterprise, regional center or their affiliates.
• The escrow agreement should specify that the investor’s money will be returned if his EB-5 petition is not filed or withdrawn.

Unfortunately, there are many disreputable third-parties that will offer escrow services to immigrants under false pretenses. Our attorneys can help protect your investment even before it begins. Contact Jatoi & de Kirby, A.P.C.  for more information, or order our FREE guide, Investor's Path to a Green Card: How Investing in America Can Put You and Your Family on the Path to Greater Wealth and U.S. Permanent Residency.

Yes. Once you receive a green card, there two major conditions that could cause it to be revoked. The first is if you are convicted of a serious crime; the second is if you abandon your U.S. residence.

“Abandonment of residence” is the most common reason immigrants jeopardize their permanent residence. While you are allowed to travel with your green card, you must not establish a permanent residence anywhere other than the United States. If you stay out of the country for too long, USICS may assume that you have abandoned your U.S. residence.

If you will be out of the country for an indeterminate amount of time, you should:

• Apply for a re-entry permit. Depending on the length of your absence, your green card may not be used as a viable U.S. entry document. You must apply for a reentry permit from USCIS before you leave the country.
• Maintain your residence. Actions such as closing your U.S. bank accounts, selling property, or taking family members with you may be seen as abandoning your home in the U.S.

It is important to note that naturalization laws also require immigrants to be physically present in the U.S. for a period of time before they may acquire U.S. citizenship. Our attorneys can help protect you and your family if you need to travel abroad suddenly.

Related Links Investor-based green card advantages Submitting forms for EB-5 visa

Many EB-5 investors want to know what final steps they need to take in order to be granted permanent residence in the U.S. If you are already living in the U.S., the process is fairly straightforward: you will need to file Form I-485, Application to Register Permanent Residence or Adjust Status.

While it only takes one official form to change your status, applicants will need to include many pieces of supporting evidence in order for Form I-485 to be approved. Petitioners should be prepared to submit the following documentation along with their application:

• A copy of your government-issued photo ID
• A copy of your birth certificate
• Two passport-sized photos of you
• A copy of your passport page with a previous non-immigrant visa (if applicable)
• A copy of passport page with previous entry stamp (if applicable)
• Certified copies of any arrest record or court records (if applicable)
• Form I-94 (Arrival/ Departure Record)
• Form I-693 (Report of Medical Examination and Vaccination Record)
• An approved copy of your Form I-526 (Immigrant Petition by Alien Entrepreneur)

Once these forms have been gathered and completed, you may submit your application to USICIS. If you wish to receive green cards for your spouse and unmarried children, they may be included on your immigration petition, but will all need to file separate Forms I-485 for consideration.