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Podcast – Why Foreign Investors Consider the EB-5 Visa? | LEGAL THOUGHTS

Coleman Jackson, P.C. | Transcript of Legal Thoughts Podcast
Published October 23, 2020

Podcast - Why Foreign Investors Consider the EB-5 Visa? | LEGAL THOUGHTS

Legal Thoughts is a podcast presentation by Coleman Jackson, P.C., a law firm based in Dallas, Texas serving individuals, businesses, and agencies from around the world in taxation, litigation, and immigration legal matters.

This particular episode of Legal Thoughts is a podcast where the Attorney, Coleman Jackson is being interviewed by Reyna Munoz, Tax Legal Assistant of Coleman Jackson, P.C.   The topic of discussion is “Why Foreign Investors Consider the EB-5 Visa?” You can listen to this podcast by clicking here:

You can also listen to this episode and subscribe to Coleman Jackson, P.C.’s Legal Thoughts podcast on Apple Podcast, Google Podcast, Spotify, Cashbox or wherever you may listen to your podcast.

TRANSCRIPT:

ATTORNEY:  Coleman Jackson
Legal Thoughts
COLEMAN JACKSON, ATTORNEY & COUNSELOR AT LAW

ATTORNEY:  Coleman Jackson

Welcome to Immigration Thoughts

  • My name is Coleman Jackson, and I am an attorney at Coleman Jackson, P.C., a taxation, litigation, and immigration law firm based in Dallas, Texas.
  • Our topic for today is: “Why Foreign Investors Consider the EB-5 Visa?
  • Other members of Coleman Jackson, P.C. are Yulissa Molina, Tax Legal Assistant, Reyna Munoz, Immigration Legal Assistant, Leiliane Godeiro, Litigation Legal Assistant and Mayra Torres, Public Relations Associate.
  • On this “Legal Thoughts” podcast our law firm’s Public Relations Associate, Mayra Torres will be asking the questions and I will be giving the answers as she and I will be discussing: “Why Foreign Investors Consider the EB-5 Visa?”

Reyna Munoz Introduces Herself to the Audience:

  • Hi everyone, I am Reyna. I the Tax Legal Assistant at the tax, litigation and immigration law firm of Coleman Jackson, P.C.  Right here in Dallas, Texas.
  • Hi Attorney; today we will be discussing the EB-5 Foreign Investor’s Visa:
    • Its history;
    • Its application process, procedure, and processing times; and
    • its advantages to the foreign investor in coming to the U.S. to start a business and bring their families to live and work in the United States permanently.

Question 1:

  • Attorney could you give a brief history and description of the EB-5 Investor’s Visa?

Attorney Answers Question 1:

  • Good morning Reyna. Thanks for your question.
  • EB-5 Investor Visa is the fifth employment-based preference visa enacted into U.S. Immigration Law in 1990 and is codified in 8 U.S.C. That is the Immigration and Nationality Act of the United States.   The fundamental purpose of the EB-5 Investor Visa Program stated by Congress when it became law in the 1990s were to grow or spur economic growth within the United States.  The fifth employment-based preference visa is designed to afford wealthy foreign investors the opportunity to live and raise their families in the U.S. in return for building a new commercial for-profit enterprise or invest in an existing U.S. for-profit enterprise employing up to ten additional full-time employees.   Let me repeat, the EB-5 Investor’s Visa category is aimed at qualified wealthy foreigners seeking to obtain permanent legal residence in the United States, investing in a new for-profit commercial enterprise that will benefit the United States economy and create at least 10 full-time jobs in the United States per investor. The program is currently administered by USCIS. The at-risk capital investment required per EB-5 investor is currently $1.8 million, but the at-risk capital investment amount is reduced to $900,000 if the investment is made in a rural community or high unemployment area, known as a Target Employment Area (TEA). These minimum EB-5 Visa investment amounts came into force in 2019. This in a nutshell is the stated Congressional purpose the fifth employment-based preference visa which is commonly known as the EB-5 foreign investors visa and anecdotally known in some circles as the “Gold Visa”.

Interviewer: Reyna Munoz, Tax Legal Assistant

Question 2:

  • What are the qualifications for obtaining the EB-5 Visa and have there been any significant changes these qualification since Congress enacted the Statute?

Attorney: Coleman Jackson

ANSWER 2:

  • Yes, absolutely there are very strident criteria that the foreign investor must meet. The immigration statute sets forth strict guidelines as to:
    1. What constitutes an at-risk investment,
    2. What constitutes a commercial for-profit enterprise,
    3. What constitutes employment of full-time employees,
    4. What constitutes a capital investment to begin with; and
    5. What constitutes a minimum required capital investment.
  • The Immigration Nationality Act (INA) defines all of these terms in excruciating detail. And yes, there have been changes in the implementation of the Statute since it became law in 1990.

Interviewer: Reyna Munoz, Tax Legal Assistant

  • Attorney, that sounds a little complex. I hope you can explain some of those technical terms more fully.
  • Question 3:

But for now, this is my next question:

You mentioned that changes have occurred in the law since 1990.  It might be best to describe those changes first; I mean, when did these changes occur, what were the changes to the EB-5 Visa,  and what impact did these changes have on the EB-5 Visa program?

Attorney Answers Question 3:

  • That is very good. Yes, I can talk about the changes to the EB-5 Program before drilling down on some of these technical terms.
  • On November 21, 2019, the EB-5 Program underwent its first major change since the program began in 1990. In July 2019, the Department of Homeland Security published changes to the EB-5 Investor Visa Program in the Federal Register. The modifications or changes were dubbed the, “EB-5 Modernization Regulations for the Immigrant Investor Program (or the regulations)”. The new regulations increased the minimum investment amount from $1,5 million to $1.8 million and to $900,000 from $500,000 in a TEA designated area.  Moreover, the regulations switched the TEA designation authority or designation decision making process from the individual states and gave it exclusively to the United States Citizenship and Immigration Services, (USCIS).  The policy aim given for making these regulation changes to the EB-5 implementation regulations was to get back to the true Congressional intent for enacting the immigration statute in the first place; that is, the goal was to grow the U.S. economy and create American jobs through foreign investors investing substantial at-risk capital in return for a clear path to U.S. citizenship. Some thought the program had gotten away from its original Congressional goal.

 Interviewer: Reyna Munoz, Tax Legal Assistant

  • QUESTION Attorney can you now circle back and explain these terms that you mentioned earlier:
    1. What constitutes an at-risk investment,
    2. What constitutes a commercial for-profit enterprise,
    3. What constitutes employment of full-time employees,
    4. What constitutes a capital investment to begin with; and
    5. What constitutes a minimum required capital investment.
  • Question 4:

What does these terms mean as they relate to the EB-5 Foreign Investor Visa Program?

Attorney Answers Question 4:

  • Okay, very well! I will briefly describe each of these terms:
  • The term commercial for-profit enterprise under the Statute is understood to mean any lawful for-profit business enterprise. The business cannot be a hobby or non-profit enterprise of any kind.  The goal of the enterprise must be to make money!  The legality of the business enterprise will be determined under federal law and not merely state or local law.  For example, some types of business activities could be lawful in a state and unlawful under federal law.  For example, a commercial for-profit marijuana enterprise; which is a lawful business enterprise in some States, is currently unlawful under federal law.
  • The commercial for-profit enterprise is structured under the applicable state law where it organizes in the form of a partnership, or limited liability company, corporation, joint venture; and even, a sole proprietorship. Let me point out here that for tax purposes a corporation owned by none-United States citizens cannot make a Chapter S Corporation election because it’s not permitted under U.S. tax law. But otherwise, the commercial enterprise may be structured under State law in whatever for-profit business structure that suits the foreign investors requirements or goals.
  • Full-time employments as defined in the EB-5 Visa Statute means is the employment by the enterprise of U.S. workers who are U.S. citizens, Green Card Holders, or workers otherwise authorized to work in the United States. The workers cannot be members of the foreign investors family or otherwise related to the foreign investor. The workers must work at least 35 hours per week to be considered full-time employees.  There are certain particulars, such as, temporary, and seasonal workers, and such transient workers that I won’t go into right now.
  • Basically, what I have briefly described is how the term full-time employment has been interpreted by USCIS adjudicators
  • I am going to combine my answer to the terms “at risk investment” and  “capital investment” together since they are both dealing with the foreign investor’s investment and what it means to make an investment  under the EB-5 Visa Statute.
  • The foreign investor must make a capital investment in the minimum amount required by USCIS. USCIS has implemented rules defining a capital investment as the contribution of-
    • cash;
    • plant, property and equipment;
    • inventory;
    • stocks, bonds, and other securities owned by the foreign investor;
    • tangible personal property; and
    • At risk debt to the foreign investor
  • This is what is meant by at-risk capital investment. Intangible property, such as, patents, trademarks,  knowledge and know-how are not considered capital assets for EB-5 investment purposes.
  • Let me turn to the last technical term that I originally mentioned; which is ‘required minimum capital investment’ under the EB-5 Statute. What does it mean?
  • The new regulations that I mentioned before that were implemented by DHS in 2019, increased the minimum investment amount from $1.5 million to $1.8 million and to $900,000 from $500,000 in a TEA designated area. That means each foreign investor must make a minimum at-risk capital investment in these minimum amounts in a new enterprise within the United States which either creates or saves 10 U.S. jobs to qualify for the EB-5 visa.
  • The required minimum investment must be converted into United States Dollars and valuated at fair market value. It must meet the statutory minimum capital investment thresholds in U.S. dollars after any currency valuations and conversions.

Interviewer: Reyna Munoz, Tax Legal Assistant

  • Question 5:

Attorney can the foreign investor execute a letter of intent to contribute the required minimum capital investment contingent upon approval of the EB-5 application?  After all, USCIS might not approve the application.

Attorney: Coleman Jackson

ANSWER 5:

  • I mentioned before the statute requires that the foreign investor invest at-risk capital into the new enterprise. The investor must go beyond a mere expression of intent to invest the required capital.  Actual commitment of the capital is required; for example, indicial needs to be sent to the USCIS that the foreign investor has deposited the monies into a bank account exclusively controlled by the business (this could also be accomplished by putting the money in a trust account on behalf of the business); the foreign investor could also show the USCIS actual commitment of capital to the new business by title transfers of assets into the business for the exclusive use of the business.  The idea is that commitment of the capital to the new enterprise must be legally enforceable and either in the ownership and control of the business or a trustee with instructions to turn the money over to the business.  The at-risk requirement simply means that the investor must be exposed to a possible lost of the committed capital; there can be any guarantees made by the business to return the capital investment in the event the business stumbles and fails.

Interviewer: Reyna Munoz, Tax Legal Assistant

Question 6:

  • What if the USCIS denies the petition? Can the foreign investor insist return of invested capital if the EB-5 petition is denied?

Attorney: Coleman Jackson

ANSWER 6:

  • I mentioned that the capital could be placed in the hands of a trustee. If this approach is used the trustee must be a bank or some form of financial institution that is unrelated to either party to the transaction.  The terms and conditions of that relationship would be governed by the escrow agreement that the parties entered into. The parties to the escrow agreement could agree to return some or all of the committed capital in the event the EB-5 petition is denied by USCIS.  The escrow agreements or other agreements that the investor might execute with other parties in the transaction must all be arms-length and compliant with the EB-5 Statute.  Let me just leave it here for now; the investor must strictly comply with the Statute and be aware of how USCIS field adjudicators are instructed in the USCIS Field Manual when evaluating EB-5 visa applications.

Interviewer: Reyna Munoz, Tax Legal Assistant

Question 7:

  • Well okay Attorney; sounds like it’s very technical and requires a lot of due diligence on the part of the foreign investor and all parties involved in the process.
  • Question 7:

My last question is this!  How does a foreign investor actually request an EB-5 visa?

Attorney: Coleman Jackson

ANSWER 7:

  • The foreign investor files USCIS Form I-526 to request classification under the fifth employment-based preference category. Currently the Form I-526 is filed at the Dallas, Texas USCIS lock box regardless of the actual location of the new commercial enterprise.  The USCIS from time to time changes the actual filing location depending upon workload and other factors.
  • Reyna, thanks for these questions this morning with respect to why foreign investors might want to consider the EB-5 visa. There are many other relevant factors at play with respect to operating a business in the United States that we have not addressed here. In addition to the immigration laws discussed, there are also federal taxation and foreign assets and account laws that might be implicated as well in foreigners immigrating to the United States.
  • I have written numerous blogs on the EB-5 foreign investor’s visa, International Taxation Issues and Foreign Assets and Accounts over the past several years. Anyone interested in knowing more about these topics should visit our blog site

Attorney’s Concluding Remarks:

THIS IS END OF “LEGAL THOUGHTS” FOR NOW

  • Thank you for giving us the opportunity to inform you about “Why Foreign Investors Consider the EB-5 Visa?”
  • We might discuss other aspects of the EB-5 foreign investor’s visa, its requirements, and international tax issues affecting foreign investors in follow up podcasts or blogs in the near future.  If you want to see or hear more taxation, litigation and immigration LEGAL THOUGHTS from Coleman Jackson, P.C.  Subscribe to our podcast and stay tune!  We are here in Dallas, Texas and want to inform, educate, and encourage our communities on topics dealing with taxation, litigation, and immigration.  Until next time, take care.

EB-5 FOREIGN INVESTOR’S VISA OVERVIEW, PROCESS, HISTORY AND ADVANTAGES

By:  Coleman Jackson, Attorney & Certified Public Accountant
October 20, 2020

EB-5 FOREIGN INVESTOR’S VISA

General Overview of the EB-5 Investor Visa: The fifth employment-based preference for immigrant investors is codified in 8 U.S. Code.  The fundamental purpose of the EB-5 Investor Visa Program was enacted by Congress to grow or spur economic growth within the United States.  The fifth employment-based preference visa is designed to afford foreign investors the opportunity to live and raise their families in the U.S. in return for building a new commercial for-profit enterprise or invest in an existing U.S. for-profit enterprise employing up to ten additional full-time employees.  The statute sets forth strict guidelines as to what constitutes an at-risk investment, what constitutes a commercial enterprise and what constitutes employment of full-time employees. Again, in return for the investment the principal foreign investor, their spouse and children (under 21 years of age) could reside in the United States, attend school in the United States, work in the United States, and apply for citizenship and retire in the United States.

 

EB-5 Investor’s Visa category is aimed at qualified wealthy foreigners

In a nutshell: The EB-5 Investor’s Visa category is aimed at qualified wealthy foreigners seeking to obtain permanent legal residence in the United States, investing in a new for-profit commercial enterprise that will benefit the United States economy and create at least 10 full-time jobs in the United States per investor. The program is currently administered by USCIS. The investment required per EB-5 investor is currently $1.8 million, although this limit is reduced to $900,000 if the investment is made in a rural community or high unemployment area, known as a Target Employment Area (TEA). These minimum EB-5 Visa investment amounts came into force in 2019.  On November 21, 2019, the EB-5 Program underwent its first major change since the program began in 1990. In July 2019, the Department of Homeland Security published changes to the EB-5 Investor Visa Program in the Federal Register.  The modifications or changes were named, “EB-5 Modernization Regulations for the Immigrant Investor Program (regulations)”. The new regulations increased the minimum investment amount from $1,5 million to $1.8 million and to $900,000 from $500,000 in a TEA designated area.  Moreover, the regulations switched the TEA designation authority or designation decision making process from the individual states and gave it exclusively to the USCIS.  The policy aim given for making these regulation changes to the EB-5 implementation regulations was to get back to the true Congressional intent for enacting the immigration statute in the first place; that is, the goal was to grow the U.S. economy and create American jobs through foreign investors investing substantial at-risk capital in return for a clear path to U.S. citizenship.

EB-5 Method and Processing:

EB-5 Method and Processing

 Foreign investors can take one or two Paths to make the required at-risk capital investment.  One Path is for the foreigner to establish a new commercial enterprise or invest into an existing for-profit enterprise by creating or joining a sole proprietorship, limited liability company, partnership, corporation or some other form of for-profit enterprise already organized and operating within the United States.  If the foreign investor takes this first prong of the stand-alone enterprise path by creating a business that complies with the statute; they must have or employ the skills and expertise to run an entrepreneur type business or startup company.  The second prong of the stand-alone path is for the foreign investor to invest a going concern that is already organized and established in the United States.  The Regional Center path is another way that the foreign investor can participate in the EB-5 visa program.  This is alternative path is the investment path that many foreign investors take in making an EB-5 investment.  Regardless of whether the investor create an enterprise or invest capital in a Regional Center, the enterprise must be a for-profit business; it must be in business to make a profit.  The enterprise cannot be non-profit enterprise.  There is a sequence of steps in the EB-5 immigration process for an EB-5 investor to earn a permanent green card. In the event the EB-5 investor selects to invest the required capital in a Regional Center approved by the USCIS, the EB-5 participant files an I-526 petition requesting conditional residency. USCIS and the State Department will determine whether the EB-5 participant qualifies for the conditional EB-5 visa. Due diligence during this part of the process includes a detailed review of the EB-5 investor’s sources of funds, family history and other representations concerning the EB-5 investor, his spouse and qualified unmarried children under the age of 21. The petition also includes a complete description of the EB-5 investment and any economic models, proforma financials, and personnel budgeting used to determine job creation. If approved, the EB-5 investor requests a conditional green card through an interview at the consulate or a status adjustment (if he or she is already in the US on another visa). If approved, the EB-5 investor receives a conditional green card valid for two years. In the final 90 days of the two-year conditional residency period, investor EB-5 files petition I-829 to remove conditions from the green card. This petition demonstrates that the EB-5 investor’s capital was fully invested and at risk during the two-year period and that the 10 necessary skilled jobs were created. Upon approval of petition I-829, the EB-5 investor and his qualified family members become legal permanent residents and may, ultimately, choose to become US citizens after five years.

Steps on the EB-5 Regional Center Path: Steps on the EB-5 Regional Center Path

  1. First Due Diligence: The potential EB-5 investor requests information about the CMB Regional Centers and the current EB-5 offerings. As soon as a confidentiality agreement is signed, the prospective EB-5 investor receives the Private Placement Memorandum, Subscription Agreement, Limited Partnership Agreement and Warranty Agreement. The foreign investor must do its due diligence in selecting a qualified, proven, and USCIS authorized Regional Center.  Due diligence requires careful examination of the structure of the Regional Center and its management, financials, projects, success stories and overall reputation.
  1. EB-5 investor chooses CMB: The EB-5 investor executes the signature documents and returns them to the CMB. The EB-5 investor then transfers his registration fee to a custody account established by the partnership on behalf of the investor where the funds are held by the custodian bank. The release of funds from the deposit may only occur in accordance with the terms of the Guarantee Agreement. The CMB Administrative Placement Agent reviews the EB-5 investor’s subscription for suitability and compliance with securities laws. Once processed, the EB-5 investor is formally accepted as a limited partner in the partnership.
  1. Petition I-526: Once the EB-5 investor is accepted as a limited partner in a CMB EB-5 partnership, the investor’s immigration attorney files petition I-526 with USCIS.
  1. Consulate Interview: If petition I-526 is approved, the EB-5 investor requests a conditional green card through an interview at the consulate or a status adjustment (Form I-485), if he or she is already in the US on another visa. If petition I-526 is denied, the investor’s capital contribution would be returned to the partner in accordance with the terms of the articles of association.
  1. Conditional Permanent Residence: Once the EB-5 investor is approved for a visa and a visa is available, the investor and qualified family members receive conditional green cards that are valid for two years. The EB-5 investor must enter the United States within 180 days, if not already in the United States. This entry into the United States begins the period of 24 months of conditional permanent residence.
  1. Petition I-829: Between the months 22-24 of the EB-5 investor’s conditional permanent residency period, the investor’s immigration attorney files petition I-829 to remove the conditions from the green card and be able to receive his ten-year green card.
  1. Return on Capital: Once all investments in the partnership have been repaid, the limited partners can vote to settle the partnership and distribute the balance of each capital account in accordance with the Partnership Agreement. The foreign investor must be sure to understand the terms and conditions of the Regional Center with regards to return of capital and all other financial terms and practices of the Regional Center.

Processing time: On average 24 months for you to get the temporary green card that is valid for 2 years, where you must apply for a new permanent visa. After that, the government will evaluate two things: if the capital was really invested in the project and at least ten jobs were generated in that time. If the investor meets the requirements, the investor receives the permanent visa in a few months.

Steps on the EB-5 Stand-Alone Business Path: EB-5 Stand-Alone Business Path  

  1. First Decide How To Structure the Enterprise:As I said before, when the foreign investor chooses to build a stand-alone business, the immigrant can choose between investing in a business that already exists in the USA, an option chosen by the vast majority of foreign investors, or by creating the business itself from the ground-up, which requires a larger number of documents and takes more time and entrepreneur skills on the part of the foreign investor; its management team and outside attorneys, accountants, bankers, risk management professionals, realtors and other expertise. The amount of the minimum investments does not change, whether the investor buy into an existing enterprise or structure an enterprise from scratch. The foreign EB-5 Visa investor will need to invest$1.8 million in at-risk capital into the business. This amount is reduced to $ 900,000 if the EB-5 project is located in a Target Employment Area (TEA). To be designated as a TEA, the EB-5 project must be located in a rural area or in a location that has high unemployment. The designation of a Target Employment Area is requested through petition I-526 from investor EB-5’s.  And remember the TEA designation is now being made exclusively by USCIS.  The states no longer are authorized under the 2019 Regulations to make TEA determinations.
  1. What does the term TEA mean: A high TEA unemployment rate is defined in the statute as a location or area with an unemployment rate of at least 150% of the U.S. national average. A TEA area could be located in the middle of a major metropolitan area if the unemployment rate meets or exceeds this threshold. However, the area with high unemployment should be located in a municipality or metropolitan area that has a population of 20,000 or more. An EB-5 project may be designated TEA if the main location of the project is located in an area of ​​high unemployment at the time the EB-5 investment is made. The following resources might be helpful in acquiring sufficient evidence for the TEA designation:
  • The US National Bureau of Statistics (US Bureau of Labor Statistic) Office of Local Unemployment Statistics (LAUS) in recent published technical bulletins;
  • Letters from federal, state and local public agencies presenting evidence of a rural or high unemployment area;
  • Other statistical documentation, such as Census data
  1. Stand-Alone Enterprise Path Processing:The processing steps 3, 4, 5, 6 and 7 that applies to the Regional Center Path that I discussed above also applies to the Stand-Alone Business Path if the foreign investor chooses to take the stand-alone business Path rather than investing in a USCIS approved Regional Center. These particular steps are primarily the same; except, for the involvement of an USCIS approved Regional Center and the particulars related to that.

Substantive Requirements of all EB-5 Foreign Investors Regardless of the Investment Path: Requirements of all EB-5 Foreign Investors  

  1. The interested investor must first of all prove the legality of the funds. This is a critical requirement and the investor must be able prove the chain-of-ownership and chain-of-possession of all of the at-risk-capital.
  • According to USCIS, the EB-5 investment must preserve or create a minimum of 10 full-time positions for workers in the United States who qualify. Such job creation or preservation must occur within two years of the investor’s conditional permanent residency and entry into the United States. Jobs created in EB-5 projects are defined as direct, indirect or induced. In the context of direct investment, the EB-5 visa applicant must prove that the EB-5 capital resulted in updating direct jobs for employees who work directly in the business in which the investment was made. In the context of the regional center, the candidate can count on direct, indirect and induced jobs in relation to the job creation requirement.
  1. Investing in a company: Foreign investors must engage in due diligence as to who is involved when investing, what they are investing in, where they are investing and why they are investing their capital. Due diligence is a must do exercise in EB-5 investing.  Proving the legality of the investor’s income is just the beginning of the due diligence process.  In the event, the interested foreign investor chooses to invest in an existing company, the investor should look for those that are licensed to receive funds under the EB-5 visa program. Some American developments that provide EB-5 investor opportunities are enterprises in engaged in such activities as resorts, luxury condominiums, restaurants, shopping centers, among others types of enterprises. The foreign investor could also decide to open and operate a startup from scratch.  Where to invest depend upon the investor’s goals and objectives.
  1. Investing in a Regional Center Project: Here, the required investment in the approved Regional Center may be less and the number of jobs required to be generated or created are affected by the pooling of the investment of several foreign investors. Perhaps there is strength in numbers.  But investment decisions must be made by individual investors taking all due diligence measures when counseling with professionals that are properly registered, licensed and controlled by the securities regulators and debt regulators in the United States.

Regulation Changes Implemented in 2019 and Some Impacts:

EB-5 Regulation Changes

The new rules of the EB-5 visa program were implemented by DHS on November 21, 2019 and the highlights of the changes were as follows:

  1. Increase of the investment value from $1,000,000 to $1,800,000 in any area within the American territory, and from $500,000 to$900,000 in less privileged areas – those known as Targeted Employment Areas – TEA. It also established that the values ​​will be revised every 05 years based on inflation: The change was established by the US Congress, with the objective of making a monetary correction and equalization with the same type of visa in other countries, since the previous value was the same since the visa was conceived in 1990. In addition, the objective was to match the other visas of investors in other countries such as Portugal, which is 1 million euros, in the United Kingdom it is 2 million of pounds.
  1. The designation of Targeted Employment Areas – TEA has come to be through the combination of continuous and adjacent registered areas in which the new commercial company is conducting and developing its business. These areas are expected to have high levels of unemployment – 150% above the national average, and should be cities and municipalities with populations over 20,000 inhabitants, and which are outside the areas of large metropolises. The United States Department of Homeland Security-DHS will decide who determines whether a certain area is classified as a TEA, eliminating the participation of state agencies. Therefore, the administration of the process and tasks such as receiving investment requests and determining areas of economic stress passed from the state to the federal level, through the Department of Homeland Security, which makes the process a little longer. This is because the local authority has a great interest in making this financial contribution to their area, where acceptance of the investment took about a month. Moving to the federal level, it may take a little longer.
  1. The beneficiaries of the main applicant may individually submit the last form I-829 of the EB5 visa process that transforms the permanent resident card from provisional to permanent. If there are problems with the visa transformation of the main applicant, the dependents can individually submit the last form.
  1. The fourth change is regarding direct EB-5. Until then, the investor of the program through direct investment had to open his own business and actively manage it to comply with the rules of generating the 10 jobs required for a minimum period of 2 years. With this change, the investor will not need to directly manage the business. The mere fact of being a rights holder through a limited partnership contract model or a participation in a new company incorporated through a limited company will meet the requirements of the active participation program in the new commercial company.

According to the United States Department of Homeland Security – DHS, the recent changes in the regulation of the EB-5 foreign investor visa program were implemented in order to combat harmful practices that were being manipulated by some operators of the program due to loopholes and flaws in its regulations.

One of the harmful practices to which they refer to is the inclusion of areas of large cities as being less privileged within the American territory, the well-known Targeted Employment Areas – TEA.

The U.S. government immigration agency announced on January 29, 2020 a change to the EB-5 visa, which gives foreigners who invest in the country the right to permanent residence. The change will be in the queue for analysis of visa investment processes, which will give priority to requests from Brazilians as of March 31, 2020. Today, the processes of all nationalities are analyzed in a general queue in the order of entry, with the response time for Brazilians between 35 to 40 months. With the measure, a single queue for each country will be created, and the deadline should fall significantly.

The processes will begin to analyze the requests from countries that do not have their quotas already occupied, such as Brazil. This change in the criteria will potentially favor, a lot, Brazilians who intend to come as investors in the EB-5 visa for the United States. The case being analyzed and answered faster will most likely lead to faster green card processing, that is, a life with less stress in the United States without the traditional anxiety about waiting and waiting for the process to work.

In 2018, Brazil was the American country that accounted for the most emissions from the EB-5 visa, also known as “Golden Visa”. There were 388 green cards awarded to Brazilians who want to invest and live in the USA. The increase was 37.5% compared to 2017 and 1,041.2% compared to 2015. In 2019, worldwide, Brazil ranked 6th among countries with the largest number of participants in the EB-5 program, becoming the country with the highest number of emissions on the American continent.

The intention of this program is to benefit local workers, boost the economy and help communities in need, attracting foreign capital investment in the United States. The EB-5 is still the most considerable path for those who want to get a green card. It is highly sought after by those who want to not only live in the USA, but invest and have a thriving business.

Historical Profile of those applying for the EB-5 foreign investor’s visa:

Historical Profile of those applying for the EB-5 foreign investor’s visaInternationally, the application for this type of visa historically has been led by Chinese, but the number of Brazilians has grown steadily in recent years. The applications appear to be from Brazilians; generally speaking, who are entrepreneurs and people of considerable wealth who no longer want to live in Brazil. From 2012 to 2018, there was an increase of more than 15 times in demand. In 2012, 24 Brazilians applied for the EB-5 foreign investor’s visa. Until 2015, it was stable, with 34 applications. Then, with the crisis in Brazil, it increased: 150 in 2016, 282 in 2017 and finally 388 in 2018.
 

Potential Advantages of Becoming an EB-5 Foreign Investor: Advantages of Becoming an EB-5 Foreign Investor

  1. Path to Green Card;
  2. Path to U.S. Citizenship;
  3. Path to Financial and Physical Security;
  4. Path to Reuniting with Family, Colleague and Friends who Have Already Moved to the United States;
  5. Path to Great Education and Schooling for the Entire Family;
  6. Path to building strong international businesses;
  7. Path to dream and give to the community

 

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This law blog is written by the Taxation | Litigation | Immigration Law Firm of Coleman Jackson, P.C. for educational purposes; it does not create an attorney-client relationship between this law firm and its reader.  You should consult with legal counsel in your geographical area with respect to any legal issues impacting you, your family or business.

Coleman Jackson, P.C. | Taxation, Litigation, Immigration Law Firm | English (214) 599-0431 | Spanish (214) 599-0432 | Portuguese (214) 272-3100

 

Warning: Two things that all Immigrants and Their Sponsors Ought to Know

Potential USCIS Fee Increases are likely on the Horizons

USCIS Affidavit of Support Policy & Practice Changes may be coming

October 12, 2020
By:  Coleman Jackson, Attorney

Potential USCIS Fee Increases are likely on the Horizons

Potential USCIS Fee Increases are likely on the Horizons:

USCIS FILING FEES WERE SET TO INCREASE ON OCTOBER 2, 2020.  Judge Jeffrey White of the United States District Court in the Northern District of California temporarily blocked the USCIS scheduled fee increases from taking place nationwide on September 30, 2020. The fees were set to increase by up to 60% on some immigration petitions. All who think they might want to file immigration petitions and applications for family members or employees should consider acting at once because temporary injunctions by courts do not necessarily mean that the USCIS will not prevail in the end; and if so, the analysis of the fee increases below(for a select group of type of petitions) could be the potential USCIS fee increases scheduled below could be  required to file the following immigration petitions and applications:

Form Number Form Title

Current Fee

Potential New Fee
I-130 Petition for Alien Relative

$535

$560
I-485 Application to Register Permanent Residence

$1,140

$1,130*
I-864 Affidavit of Support

$0

$0
I-765 Application for Employment Authorization

 

$410

$550
I-131/I-131A Application for Travel Document

$575

$590
Biometrics Biometrics fee

$85

$85
I-90 Application to Replace Permanent Resident Card (Paper Filing)

$455

$415
I-102 Application for Replacement/ Initial Nonimmigrant Arrival-Departure

$445

$485
I-129/129CW Petition for a Nonimmigrant Worker

$460

$695
I-129F Petition for Alien Fiancé

$535

$510
I-140 Immigrant Petition for Alien Worker

$700

$555
I-212 Application for Permission to Reapply for Admission into the U.S. after Deportation or Removal  

$930

 

$1,050

I-360 Petition for Amerasian Widow(er) or Special Immigrant

$435

$1,130
I-526 Immigrant Petition by Alien Entrepreneur

$3,675

$4,010
I-539 Application to Extend/Change Nonimmigrant Status

$370

$390
I-600/600a Petition to Classify Orphan as an Immediate Relative/Application for Advance Petition Processing of Orphan Petition

$775

$805
I-800/800A Petition to Classify Convention Adoptee as an Immediate Relative/ Application for Determination of Suitability to Adopt a Child from Convention Country  

$775

 

$805

I-601 Application for Waiver of Ground of Excludability

$930

$1,010
I-601A Application for Provisional Unlawful Presence Waiver

$630

$960
I-690 Application for Waiver of Grounds of Inadmissibility

$715

$765
I-694 Notice of Appeal of Decision

$890

$715
I-698 Application to Adjust Status from Temporary to Permanent Resident (Under Section 254A of the INA)  

$1,670

 

$1,615

I-751 Petition to Remove Conditions on Residence

$595

$760
I-824 Application for Action on an Approved Application or Petition

$465

$495
I-829

 

Petition by Entrepreneur to Remove Conditions

$3,750

$3,900
I-924 Application for Regional Center Designation Under the Immigrant Investor Program

$17,795

$17,795
I-924A Annual Certification of Regional Center

$3,035

$4,465
I-929 Petition for Qualifying Family Member of a U-1 Non-immigrant

$230

$1,485
N-336 Request for Hearing on a Decision in Naturalization Proceedings

$700

$1,735
N-400 Application for Naturalization

$640

 

$1,160

 

N-470 Application to Preserve Residence for Naturalizing Purposes

$355

$1,585
N-565 Application for Replacement Naturalization/Citizenship Documents

$555

$535
N-600 Application for Certification of Citizenship/Application for Citizenship and Issuance of Certificate under INA Section 322

$1,170

$1,00

* Biometric Fee is included in the I-485 application

 

USCIS Affidavit of Support Policy & Practice Changes may be Coming:

USCIS Affidavit of Support Policy & Practice Changes may be coming

DHS has also proposed a new rule regarding the Affidavit of Support Process. This update requires U.S. Citizen sponsors, nationals, or lawful permanent residents who sponsor an immigrant to provide credit reports and credit scores, certified copies of income tax returns for the last three years, and bank account information to effectively demonstrate they can maintain the required income.

Petitioning sponsors that have received public benefits within the last 26 months of submitting a Form I-864 must be backed by a joint sponsor who has received no such public benefits during that time.

Follow our law firm’s blogs and listen to our Legal Thoughts Podcast on Apple Podcast, Google Podcast, Spotify or where ever you listen to your podcast for updates concerning these topics and other taxation, litigation and immigration information you can use!

This law blog is written by the Taxation | Litigation | Immigration Law Firmof Coleman Jackson, P.C. for educational purposes; it does not create an attorney-client relationship between this law firm and its reader.  You should consult with legal counsel in your geographical area with respect to any legal issues impacting you, your family or business.

Coleman Jackson, P.C. | Taxation, Litigation, Immigration Law Firm | English (214) 599-0431 | Spanish (214) 599-0432 | Portuguese (214) 272-3100

Foreign Doctors and Other Healthcare Workers Opportunities to Work & Live in the United States

October 9, 2020
By Coleman Jackson, Attorney
Foreign Doctors and Other Healthcare Workers Opportunities to Work & Live in the United States

Covid-19 has revealed a lot of short comings in the health care system in the United States.  An overwhelming majority of negative health outcomes have affected the minority communities throughout the country.  The social injustices and the long tail of racial injustice and its impact on the health and well being of our follow citizens are glowing clearly down whatever dark path Covid-19 takes as it sweeps across America’s urban areas and rural areas and whatever other path this mysterious virus goes down.  One thing is clear its impact is not equal on all of America.

America needs to do better.  She must do much better by its citizenry.  One place to start is making sure that a sufficient supply of quality healthcare workers is available to serve all America regardless of what they look like or how much money they have in the bank.  Quality healthcare involves much more than universal health insurance and access to understaffed hospitals and clinics.  There must be qualified, compassionate, skilled healthcare providers who are willing and able to serve communities throughout America staffing the hospitals, clinics and medical offices.

Health Care Worker Visa

If there is a shortage in health care workers, can health insurance coverage alone solve the problems laid bear by Covid-19? There were a woefully insufficient number of healthcare workers in under served communities throughout the United States long before Covid-19 arrived on our shores.  Health insurance does not solve this problem.  Legislation enacted on November 12, 1999, 220 Public Law No. 106-95, 113 Statute 1312 Section 5 suppose to have made it easier for certain foreign physicians and other healthcare workers seeking to work and reside in the United States to enter the United States in the second employment-based preference category, known as the,  EB-2 Visa under the national interest waiver.  Now the EB-2 NIW is not the only visa that health care workers may use to work in the United States, for example, the H1-B, J-1, EB-1 and the traditional EB-2 are all visa types that might afford foreign health care workers the opportunity to live and work in the healthcare field within the United States.  But the EB-2 NIW was designed to make it easier and shorten the time for foreign healthcare workers to come to the United States to live and work indefinitely in the healthcare industry.

The EB-2 NIW- Who Qualifies for the EB-2 National Interest Visa?   All kinds of doctors, nurses and other healthcare workers may qualify; so long as, they agree to work full time in a field designated by the U.S. Department of Health and Human Services (HHS) as a health professional shortage area or in a Veterans Administration Hospital; and a federal agency or a state department of public health has determined that the healthcare workers’ service is in the public interest.  These are the two prongs of the 1999 legislation establishing the EB-2 National Interest Waiver.  They must be satisfied by obtaining a certification from the federal or state agency, such as the Veteran’s Hospital (VA) on the federal level or State Public Health Agency on the State level.  Local health agency certification will prove to be insufficient and also private organization attestation of the public interest will prove to be insufficient to satisfy this requirement.  A certification by the State Department of Public Health tend to be persuasive evidence of “public interest” when it comes to satisfying the National Interest Waiver certification requirement.  Keep in mind that an NIW is generally considered an easier path to the second preference employment-based EB-2 visa.  NIW healthcare workers must still satisfy all of the requirements for the traditional EB-2 visa in addition to the NIW requirements.

EB-2 Visa
The EB-2 NIW- Does the EB-2 National Interest Visa applicant need to obtain a U.S. Department of Labor certification?  The EB-2 NIW is exempt from labor certification requirements under the 1999 legislation.  The physician or other healthcare worker must certify that they will work full time in a healthcare shortage area or VA hospital for five years.  The healthcare worker must present credible evidence that their work will advance a critical national goal and that their work will benefit the public interest of the United States.  In this time of Covid-19, this certification by the foreign healthcare worker could possibly be easier that ever before to meet due to increased coronavirus related sickness, hospitalizations and exhaustion and depletion of health industry capacity that was already strained in some rural and underserved areas of thee U.S. long before Covid-19 hit the American shores.

The EB-2 NIW- What is the process of applying and how long does it generally take from the filing of the application and working at an American hospital, clinic or other healthcare facility?First of all, the petitioner applying for an EB-2 NIW does not need a hospital or other institution to file the petition nor do they need a job offer.  The foreign healthcare worker can self-petition for an EB-2 NIW. The petitioner must first file USCIS Form I-140 with supporting documentation showing the following:

  • All identification evidence required for the traditional EB-2 visa;
  • Written evidence that the two prongs of the National Interest Waiver showing that the healthcare worker will work full time in an underserved healthcare area, or in a Veterans Administration Hospital facility;
  • Credible Credentialing evidence that shows or demonstrates that the physician or other healthcare worker has the educational, licensing, experience and other professional indicia required by Immigration and Nationalization Act Section 212(a)(5) (B) to work in the intended State of the United States in which they intend to work;
  • All evidence required for USCIS Form I-485 Adjustment Application in the event an Immigrant Visa is immediately available. The immigrant must review theVisa Bulletin published each month by the U.S. Department of State in making the determination as to when to file Form I-485, Adjustment of Status Application; and
  • Other credible evidence as required for healthcare workers in the State.

 

healthcare workers spouse and family visa

As for the processing times at the USCIS, currently processing times are over one year; but, processing times varies based on all facts and circumstances and during Covid-19 the process could take a few months if the foreign healthcare worker shows that their skills are in the public interest and that they are willing to serve at medical facilities with acute shortages or in underserved communities in rural and intercity America.  It should be noted that although an adjustment of status application (Form I-485) can be filed when an immigrant visa is available and can even be filed concurrently with the I-140; the USCIS is not expected to approve the adjustment application until the healthcare worker has actually served in the underserved medical area for at least five years.    Where to file for EB-2 NIW?  Outside of the United Sates the foreign worker files the appropriate forms and supporting documents with the U.S. Consulates Office in their home country; whereas, inside the United These the petitioning foreign healthcare worker files the appropriate forms and supporting documents with USCIS who handles immigration processing inside the country.  Premium or expedited processing could be available to speed up the processing of the I-140 petition; but the availability of premium processing is changed by the government from time to time upon short notice.

The EB-2 NIW- What about the healthcare workers spouse and family? The foreign workers spouse and children under the age of 18 may be admitted to the Unites States in the E-21 and E-22 immigrant visa status.  Their spouse and children can enroll and attend school in the United States.  During the pendency of the adjustment of status application, the spouse is eligible to file for Form I-765, Employment Authorization Application for approval to work in the Unites States.  The spouse and the children can maintain this status and live in the United States indefinitely; so long as, the principal foreign worker maintains the EB-2 NIW immigration status.  Let’s just note that the foreign worker and their spouse and children can travel freely inside and outside of the United States, so long as, they maintain the second preference employment-based visa immigration status.  Once the individual family members adjustment of status application is approved (they get their Green Cards) and they can reside and work in the United States permanently and they can apply for U.S. citizenship after holding the Green Card status for five years.

This law blog is written by the Taxation | Litigation | Immigration Law Firm of Coleman Jackson, P.C. for educational purposes; it does not create an attorney-client relationship between this law firm and its reader.  You should consult with legal counsel in your geographical area with respect to any legal issues impacting you, your family or business.

Coleman Jackson, P.C. | Taxation, Litigation, Immigration Law Firm | English (214) 599-0431 | Spanish (214) 599-0432 | Portuguese (214) 272-3100

 

Podcast – Employment Authorizations for Immigrants: Who Qualifies and How to Apply?| LEGAL THOUGHTS

Published August 4, 2020

Podcast - Employment Authorizations for Immigrants: Who Qualifies and How to Apply?| LEGAL THOUGHTS

Legal Thoughts is a podcast presentation by Coleman Jackson, P.C., a law firm based in Dallas, Texas serving individuals, businesses, and agencies from around the world in taxation, litigation, and immigration legal matters.

This particular episode of Legal Thoughts is a podcast where the Attorney, Coleman Jackson is being interviewed by Mayra Torres, the Public Relations Associate of Coleman Jackson, P.C.

The topic of discussion is “Employment Authorizations for Immigrants: Who Qualifies and How to Apply?” You can listen to this podcast by clicking here: 

You can also listen to this episode and subscribe to Coleman Jackson, P.C.’s Legal Thoughts podcast on Apple Podcast, Google Podcast, Spotify, Cashbox or wherever you may listen to your podcast.

TRANSCRIPT:

ATTORNEY:  Coleman Jackson
Legal Thoughts
COLEMAN JACKSON, ATTORNEY & COUNSELOR AT LAW

ATTORNEY:  Coleman Jackson

Welcome to Immigration Thoughts

  • My name is Coleman Jackson and I am an attorney at Coleman Jackson, P.C., a taxation, litigation, and immigration law firm based in Dallas, Texas.
  • Our topic for today is: “Employment Authorizations for Immigrants: Who Qualifies and How to Apply?”
  • Other members of Coleman Jackson, P.C. are Yulissa Molina, Tax Legal Assistant, Reyna Munoz, Immigration Legal Assistant and Mayra Torres, Public Relations Associate.
  • On this “Legal Thoughts” podcast our law firm’s Public Relations Associate, Mayra Torres will be asking the questions and I will be giving the answers as she and I will be discussing: “Employment Authorizations for Immigrants: Who Qualifies and How to Apply?”

Mayra Torres Introduces Herself to the Audience:

  • Hi everyone, I am Mayra. I am the Public Relations Associate at the tax, litigation and immigration law firm of Coleman Jackson, P.C. Right here in Dallas, Texas.
  • Now Attorney: this is a follow up on a podcast that we did a couple of weeks ago where you and I were discussing “Green Cards & Work Permits” during this dread…………full pandemic!
  • Let’s go deeper into immigrants and work authorizations in the U.S. First of all:
  • What are the different types of work permits and who qualifies to work in the United States?

Attorney Answers Question 1:

  • Wow Mayra; that is a gigantic question since there are over 50 or 60 different categories of work authorizations defined in the U.S. Immigration Nationality Act, or INA, 8 United States Code. Each of these categories apply to different categories of immigrants, non immigrants, and their family members. Each category has different qualifying criteria. The duration for each category may also differ depending upon the specific authorizing provision of the INA.
  • We might have to address your question in several separate podcast over the next few weeks or even months. Interested listeners should subscribe to our podcast. For now, I intend to cover maybe 10 categories of work permits in this particular podcast. And for the most part I will merely mention the technical references to the applicable INA Section numbers authorizing the particular work permit category. I will also try to leave out the legal jargon and speak in ordinary language to see if I can explain work authorizations so that normal people can understand the different categories of work permits and their specific qualifying requirements.

Mayra Comments on That Approach

  • Oh exactly attorney. Its best to explain this in simple, easy to understand words;so that, people can follow along and understand what you are saying; you know! I mean …talk in language that regular people can understand.
  • And oh yeah; we can have a series of conversations on this topic in future podcast. Anyone who wants to know more about work permits for immigrants can subscribe to our law firm’s podcasts. Okay let’s go… my first question is this:
  • What are the different types of work permits and who qualifies?

Attorney Continues with Answer of Question1:

  • I am going to start by discussing those classes of immigrants who are authorized to be employed in the United States without restrictions as to location or type of employment:
    1. An immigrant who is a Lawful Permanent Resident (with or without conditions pursuant to INA section 216). These are immigrants issued Form I-551 or Green Card by the Department of Homeland Security.
    2. An immigrant who is a lawful temporary resident of the U.S. pursuant to INA section 245A or section 210 of the Immigration Nationalization Act. These temporary residents of the U.S. have been issued an EAD or Employment Authorization Document.
    3. An immigrant who has been paroled into the U.S. under INA section 207 as refugee.Refugees in the U.S. have been issued an EAD or Employment Authorization Document.
    4. An immigrant who has been granted asylum under INA section 208. Asylum seekers whose applications have been pending for more than 90 days can also be granted a work authorization while their asylum applications are pending decision at the Asylum Office.
    5. An immigrant who has been granted Temporary Protected Status (TPS) under INA section 244 has been issued an Employment Authorization Document (EAD).
    6. Any immigrant who has been granted U-1 crime victims status pursuant to 8 CFR 214.4 are issued a work authorization so long as they are in that status.
    7. Any immigrant who has been granted VAWA status under the Violence Against Women’s Act has the authority to work in the United States as long as they are in that status.
  • All immigrants who are authorized employment incident to their status, must apply to U.S.Citizenship and Immigration Services (USCIS) for a work authorization with the exception of the Green Card holder and the immigrant granted VAWA status; a VAWA self-petitioner can request authorization to work directly on the Form I-360 Petition. And Green Card Holders or Lawful Permanent Residents have the authority to work anywhere.
  • Again, all work permits discussed so far falls into the category where the immigrant can be employed in the United States without restrictions as to location or type of employment. They can work anywhere. Now less turn to the category of work authorization which are restrictive as to location and employer.

Interviewer:  Mayra Torres, Public Relations Associate

Question 2:

  • You mean some immigrants are restricted as to who they can work for and when!
  • What kind of restrictions are we talking about here? You mean there are immigrants who can’t work for anyone they want and anywhere in the United States … they want?

Attorney Answers Question 2:

  • Yes Mayra; that is exactly right. Some immigrants are issued work permits that restrict who they can work for and where they can work in the United States. I am only going to cover about three in this podcast. These are the most popular types; but again, we might revisit this topic in future podcast. For now, I am going to limit my discussions of immigrants who are restricted by law to work for a specific employer or otherwise restricted to employment authorized in the INA to these three:
  • First: A non immigrant treaty trader in the E-1 category and treaty investor in the E-2 category pursuant to INA section 214.2(e) are restricted to working only for the treaty-qualifying company through which they attained their status. They cannot work for anyone else in the United States.
  • Second: A non immigrant student must have a valid F-1 student status and are restricted pursuant to INA section 214.2(f) to working no more than 20 hours per week when the school is in session or full-time when school is not in session if the student intends to and is eligible to register for the next term or session. Moreover, the INA provides that students can engage in employment in the form of curricular practical training (internships, cooperative training programs, or work-study programs which are part of an established school curriculum) after being enrolled as a full-time student for a full academic year. These employment matters are handled on campus by the Designated School Official at the student’s college or university on Form I-20.
  • Third: An intra-company transferee in the L-1 status pursuant to INA section 214.2(l) is authorized to work only for the employer who filed the petition through whom they obtained the L-1 status.An immigrant on L-1 status cannot work for anyone else in the United States. I might add that the type of work they can perform is also restricted to the representations made by their employer in their petition. They must be high-level managerial or executive level individuals coming to the U.S.to oversee some specified areas or providing expertise in growing the domestic enterprise.

Attorney Interview: By Mayra Torres

QUESTION 3:

  • Wow! Attorney thanks for giving such comprehensive overview of these 10 types of work permit categories.
  • I have so many more questions, such as,
    • What is the duration of each one of these work permits that you have discussed; and
    • Whether the immigrant’s family members, such as, their spouse, children, and parents can work too; and
    • How can an immigrant with a work permit get a Green Card (we might have covered that in our previous podcast on Green Cards, but I can’t remember your answer now)?
  • Maybe we can discuss those questions in future podcast or blogs or something.
  • But a big question right now with this pandemic deals with workers getting sick on their jobs.
  • Question number 3 is this one: Undocumented Immigrants are not authorized to work in the United States; so… what if they catch Covid-19 at work and get sick or …worst…dies…. Are they entitled to receive any money for lost wages or earnings?

Attorney Answers Question 3:

  • That is a very complex question and the law could be in flux because of federal, state, or local rules changes being discussed in many circles. These protections could impact whether employees can recover damages of any kind resulting from injuries allegedly sustained as the result of Covid-19.So, I will limit my answer to Texas law pre-Covid 19.
  • Well established law in Texas says that injured workers and/or contractors are not required to be U.S. citizens nor are they required to possess immigration work authorization permits as a prerequisite to recovering damages for lost earning capacity due to injury on the job. There is case law that goes as far back as 1993 that holds this legal principle.
  • But the law in this area could change as law catch up with legislative and other changes at the federal, state, and local level as it pertains to the response to Covid-19. And let me just say, federal law can be an affirmative defense whenever it conflicts with state or local law. So bottom line; the answer to this question is unclear at this time.

Attorney’s Summary:  Coleman Jackson

  • Mayra thanks for asking some very important questions regarding work permits.
  • I know we did not answer all of the questions you might have on this very important immigration topic. We might revisit it in our future blogs, podcast, or videos on our U-Tube Channel. For now,we have to go.

Attorney’s concluding Remarks:

THIS IS END OF “LEGAL THOUGHTS” FOR NOW

  • Coleman Jackson, Attorney’s concluding remarks:
  • Thanks for giving us the opportunity to inform you about the Immigrant Work Authorizations in the U.S. We might discuss other aspects work permits and their requirements in follow up podcasts or blogs in the near future. If you want to see or hear more taxation, litigation, and immigration LEGAL THOUGHTS from Coleman Jackson, P.C. Subscribe to our podcast and Stay tune! We are here in Dallas, Texas and want to inform, educate, and encourage our communities on topics dealing with taxation, litigation and immigration. Until next time, take care.

IMMIGRATION PROTECTIONS FOR CRIME AND ABUSE VICTIMS

By Coleman Jackson, Attorney & Counselor
June 23, 2020

IMMIGRATION PROTECTIONS FOR CRIME AND ABUSE VICTIMS

Under U.S. law an immigrant who is the victim of crime and abuse could be eligible to become a lawful permanent resident (get a green card) if they or themselves or child or parent are a victim of a crime or extreme cruelty under certain circumstances.  The particulars of the circumstances are the determinants as to whether the immigrant victim should pursue green card status through:

  1. the United States federal law (Title IV, Sections 40001-40703 l Violent Crime and Law Enforcement Act, as amended | VAWA Status
  2.  the Immigration & Nationalization Act Section 101(a)(15)(U) visas or
  3.  the Immigration & Nationalization Act Section 1101(a)(15)(T) visas.

CRIME AND ABUSE VICTIMS

In a civilized society, unchecked violence against anyone cannot be tolerated for it violates the social compact between peoples.  Injustice is violence; its abuse and it goes against truth and all notions of decency and order. Injustice cannot be tolerated for without justice peace is impossible to achieve.

Immigrants like all peoples have fundamental human rights given to them by their creator.  For a long time now, United States federal law has set forth protections for immigrants in (1) VAWA status, (2) U visa and (3) T visa.  Some of the most significant comparisons and differences between VAWA status, U Visa and T Visa are as follows:

Differences and Comparisons Between Three Types of Protections for Immigrant Crime and Abuse Victims

 

  VAWA STATUS U VISA T VISA
WHO Applies to Immigrant spouses, children, parents abused by their U.S. Citizen spouses, parents or children or Green Card Holders Applies to Immigrant crime victims Applies to Immigrant human trafficking victims
WHAT Battered spouses, children and parents who have endured substantial physical, emotional and psychological abuse at the hands of a U.S. citizen or Lawful Permanent Resident. Victims of abduction, abusive sexual contact, hostage, blackmail, domestic violence, extortion, murder, incest, involuntary servitude, rape, prostitution, sexual assault, stalking, trafficking, witness tampering, perjury and other specifically listed crimes perpetrated inside the United States by any perpetrator. Victims who tricked, deceived, hoodwinked, coerced, recruited, transported, harbored, housed in the U.S. for the purpose of violence& abuse, sexual exploitation, pornography, forced labor, debt slavery, involuntary servitude, or like evil acts.
WHEN AND WHERE MUST THE ABUSE OR CRIME OCCUR During a bona fide marriage or within specified familial relationships with U.S. citizen or LPR While immigrant victim is In the United States and is victim of specified crimes by any perpetrator. While victim is inside or outside of the United States and is a victim of a crime by any person bringing or receiving the trafficking victim in U.S.
       
HOW TO APPLY FOR THE IMMIGRATION BENEFIT File I-360 Application with USCIS if inside the U.S. File I-918 Application with USCIS if inside the U.S. File I-914 Application with USCIS if inside the U.S.
       
DO THE IMMIGRANT NEED TO HELP LAW ENFORCEMENT Does not have to help law enforcement and does not need law enforcement Application Certifications Must help law enforcement and must get law enforcement to help complete Application Certifications Does not have to help law enforcement and does not need law enforcement Application Certifications

 

IMMIGRATION PROTECTIONS FOR CRIME AND ABUSE VICTIMS

These are some highlights of the differences and comparisons of these three options available for immigrants; who unfortunately, find themselves abused or otherwise victimized.  They simply need to know that they don’t have to suffer injustice in any form in silence and all alone.  There are laws designed to protect immigrant abuse and crime victims.  And there are many social agencies available for abuse victims throughout the nation.  Don’t let anyone ever take away your humanity.  You have been created with hope and dignity and a purpose.

 

This law blog is written by the Taxation | Litigation | Immigration Law Firm of Coleman Jackson, P.C. for educational purposes; it does not create an attorney-client relationship between this law firm and its reader.  You should consult with legal counsel in your geographical area with respect to any legal issues impacting you, your family or business.

Coleman Jackson, P.C. | Taxation, Litigation, Immigration Law Firm | English (214) 599-0431 | Spanish (214) 599-0432

Foreign Agricultural H-2A Visa Workers on American Farms During Covid-19 National Emergency

By:  Coleman Jackson, Attorney & Certified Public Accountant
May 14, 2020

Foreign Agricultural H-2A Visa Workers

The H-2A nonimmigrant visa classification has been around for a very long time.  See Immigration and Nationality Act (INA) 101(a)(15)(ii)(a), 8 U.S.C. 1101.  The H-2A foreign agricultural workers visa; known as H-2A is more in the public eye right now due to the media’s focus on the rise of Covid-19 cases in meat packing plants, on farms and in rural America potentially resulting in food supply chain disruptions.  The concern of the coronavirus’ disruption of the food supply is very real and it is of grave concern to the well being of farmers’ bringing their goods to market and to their fellow citizens ability to feed their families.  In a nutshell, the foreign agricultural workers program known as the H-2A Visa permits agricultural employers to fill shortages in the available work force by following certain procedures to lawfully bring foreigners to the United States temporarily to perform temporary or seasonal agricultural work.  The Department of Homeland Security defers to the U.S. Department of Labor with respect to defining what work falls into the categories of temporary and seasonal agricultural work.  Historically, the Department of Labor has defined “agricultural labor” as such duties as hauling and delivery on the farm, harvesting, cultivating and planting seed.  Foreign workers on H-2A Visas has historically also worked as sheep herders, goat tenders, cattle raisers, poultry farmers and in other occupations typically in rural areas of America where various kinds of animals are raised for market.  The point is that agricultural workers are not limited to farms performing task around a farm; foreign workers on H-2A Visas work on plantations, ranches, nurseries, meat packing plants, greenhouses, orchards, and as truck drivers and delivery drivers on these or other similar locations.  The Immigration and Nationality Act (INA) has defined the term temporary agricultural work as no more than 12 months or employment of a seasonal nature tied to a certain time of the year, event or pattern.

 

Foreign Agricultural H-2A Visa Workers

There was-and-still-is a very regimented step-by-step process that  agricultural employers must follow to bring foreign farm laborers to work on their farms, ranches, meat packing plants or similar locations; which begins with a petition filed with their state workforce commission; then they go to the DOL for labor certification that there is a lack of available domestic workers to perform the intended project; once the employer receives the DOL Labor Certification they file a request with the Department of Homeland Security; and upon approval, the foreign worker petitions the Consulate’s Office in their country to obtain the H2-A Visa to come to America and work on a specific  temporary or seasonally project for less than 12 months.  The H-2A visa is valid for 3 years.

 

Foreign Agricultural H-2A Visa Workers

This process has been relaxed and modified somewhat. Covid-19 has created the necessity to impose travel restrictions, stay at home orders and caused lots-and-lots of tremendous pain, loss and suffering throughout the country.  In response to anticipated disruptions and uncertainties in the U.S. food supply and the ongoing impact of the Covid-19 epidemic in rural America; the Department of Homeland Security and U.S. Citizenship and Immigration Services (USCIS) published temporary amended regulations regarding temporary and seasonal agricultural workers and their U.S. employers in the H-2A nonimmigrant agricultural workers classification.  These final regulations are published in 85 FR 21739 and is effective from April 20, 2020 through August 18, 2020.The following are the major amendments to the normal process that historically were used by domestic farmers to bring foreign nonimmigrant workers to work temporarily on their farms, ranches, meat packing plants and other similar locations under the H-2A Agricultural Workers program:

  • The H-2A regulations were temporarily amended to permit all H-2A employers to allow nonimmigrants who currently hold a valid H-2A visa status to start working upon the receipt of the employer’s new H-2A petition, but not earlier than the start date of employment listed on their H-2A petition.
  • The H-2A regulations were temporarily amended to permit all H-2A workers to immediately work for any new H-2A employer, but not earlier than the start date of employment listed on the H-2A petition filed during the Covid-19 National Emergency.
  • The H-2A regulations were temporarily amended to create a temporary exception to 8 CFR 24.2 to allow nonimmigrants to extend their H-2A period of stay beyond the three-year limitations without first requiring that the immigrant leave the United States and remain outside of the United States for an uninterrupted period of three months. It is important that an H-2A petition for an extension of stay with a new employer must have been filed with USCIS on or after March 1, 2020 and remain pending as of April 20, 2020.
  • H-4 nonimmigrants who are the spouses and children of an H-2A agricultural worker visa holders are beneficiaries of these same amendments noted in one through three above. H-4 visa holders’ admission and limitations of stay are dependent on the validity of the H-2A visa holders’ status and they must be otherwise admissible.

Moreover, as a practical matter, certain in-person interview requirements at the Consulate Offices have been eased during this Covid-19 National Emergency to facilitate foreign workers traveling into the United States.  H-2A workers fall under the ‘essential worker’ category of critical worker and probably are exempt from the stay-at-home, travel restrictions and other measures imposed by local, state and federal governmental agencies during this Covid-19 National Emergency.

 

Foreign Agricultural H-2A Visa Workers

Foreign agricultural workers on H-2A visas are subject to the United States federal tax laws but they are exempt from withholding of U.S. federal income taxes, social security taxes and Medicare taxes on compensation paid to them for services performed in connection to their H-2A agricultural worker visa status.  If they receive more than $600 in compensation, the foreign nonimmigrant worker must receive a Form W-2 from their employer which exempts social security and Medicare taxes.  Typically, the worker files Form 1040-NR and the employer must report the wages of its agricultural nonimmigrant workers on Form 943, Employer’s Annual Federal Tax Return for Agricultural Employees and file all other appropriate tax returns with local, state and federal taxing authorities.   Most of the modified filing, payment and reporting deadlines announced by the U.S. Treasury and Internal Revenue Service during this Covid-19 National Emergency applies to H-2A agricultural workers and their employers.

This law blog is written by the Taxation | Litigation | Immigration Law Firm of Coleman Jackson, P.C. for educational purposes; it does not create an attorney-client relationship between this law firm and its reader.  You should consult with legal counsel in your geographical area with respect to any legal issues impacting you, your family or business.

Coleman Jackson, P.C. | Taxation, Litigation, Immigration Law Firm | English (214) 599-0431 | Spanish (214) 599-0432

WORKPLACE ENFORCEMENT OF EMPLOYMENT ELIGIBILITY RULES IS A POTENTIAL TIME BOMB

By:  Coleman Jackson, Attorney
March 5, 2018

WORKPLACE ENFORCEMENT OF EMPLOYMENT ELIGIBILITY RULES

Any individual who is not a citizen or national or lawful permanent resident or specifically authorized to work in the United States cannot be lawfully hired as an employee by any individual, company or agency.  Any employer who intentionally hires anyone not authorized to work in the United States violates Public Law 99-603 (Act of 11/6/1986).  This law was passed by the U.S. Congress and signed by President Ronald Reagan in order to control and deter unlawful entries into the United States.  This law, commonly referred to as amnesty provided for legalization of undocumented immigrants who had been continuously unlawfully residing and working in the United States since 1982, legalization of certain agricultural workers, sanctions for employers who knowingly hire undocumented workers, and increased borders enforcement.

This blog’s focus is on the provision of Public Law 99-603 that prohibits and penalizes any U.S. individual, organization or agency that intentionally hires or recruits to hire workers who are not authorized to work in the United States.  U.S. Citizenship and Immigration Services (USCIS) Form I-9 is required to be used by all employers regardless of whether they are classified as large, medium, small employers to document their continuous compliance with their obligations under Public Law 99-603. Form I-9 is a three page document.  Employers and Employees are required to complete their respective sections of Form I-9.  Form I-9 comes with a 15 page detailed set of instructions to employers and employees that must be complied with from the very initial stage of hiring any worker by an American person or business.  Since November 27, 2011, American employers must complete Form I-9 to document verification of the identity and employment authorization of each and every new employee.  The rule applies to all employees regardless whether the employee is a United States Citizen, National, and Lawful Permanent Resident or otherwise lawfully authorized to work in the United States.  The employee must complete their section of Form I-9 within one day of starting to work, and the employer must complete their section of Form I-9 within three days of the employees hire date. The employer cannot simply take the employees word for it.  The employee must provide unexpired documentation from the categories listed on page three of Form I-9.  Again, the employer cannot tell the employee what documentation to present.  The employer or their agent must personally examine the actual document (original) presented by the employee.  The employer must make a copy of the documents presented and maintain them in their files.  Moreover, the employer has a continuing obligation under Public Law 99-603 to update their I-9 files when there is expiration date on an employees work authorization card.  The requirements we have discussed in this paragraph can be thought of as the I-9 documentation requirements.  Form I-9 is not filed with the U.S. government.  Every employer must maintain an I-9 file on each employee and make it available for inspection and examination in the event of an Immigration and Customs Enforcement visit.  Immigration and Customs Enforcement (ICE) performs I-9 audits without advance notice.  ICE workplace audits have been on the rise in recent years.  ICE raids affecting some of the larger employers have been widely reported on by the U.S. press.  But just because an employer is not a large company does not mean that they are exempt from ICE I-9 Immigration and Nationalization Act (INA) enforcement actions.  All U.S. employers are subject to an ICE raid regardless of whether they hire immigrants or not since Public Law 99-603 requires all employers to document the identity and authorization to work of all workers, including U.S. citizens, Nationals, Permanent Residents, and others.  All employees mean all employees and all employers mean all employers regardless whether the employer is hiring a new hire, a rehire, temporary or permanent worker.  All U.S. employers potentially face workplace enforcement of employment eligibility ICE raids at anytime.  Workplace enforcement raids are like a time bomb.

Form I-9 Filing

Repeat, federal immigration law applies to all U.S. employers.  Who is an employer for purposes of workplace enforcement of employment eligibility rules?  I will address it from the perspective as to who is an employee under the Act.  An employee for Form I-9 purposes means any person who performs labor or services in the United States for an employer in return for wages or other compensation or payment.  It could be remuneration in the form of payment-in-kind.  Employee for Form I-9 purposes does not include independent contractors, subcontractors, volunteers or certain casual domestic workers.  By looking at it from the vantage point of who is an employee, employers should be able to determine whether they are likely to be considered an employer for Form I-9 purposes.

The Form I-9 must be maintained in a File by the employer

Are there any penalties for U.S. employers who violate the law?  Yes, absolutely since all U.S. employers are subject to the workplace enforcement of employment eligibility rules!  Besides the potential for public shame associated with cheating by hiring undocumented workers to gain an unfair advantage over competitors, the U.S. government can impose civil fines and even criminal prosecution in  more heinous cases.  The Form I-9 must be completed accurately.    The Form I-9 must be maintained in a File by the employer.  The Form I-9 must be made available for inspection anytime ICE asks to review them.  When ICE finds that an employer has knowingly hired or knowingly continued to hire an unauthorized worker, or failed to comply with Form I-9 employee identification and work eligibility requirements, ICE or a Department of Homeland Security Administrative Law Judge will issue the employer a Notice of Intent to Fine (NIF).  The employer has 30 days from receipt of the NIF to request a hearing on the merits.  If the employer fails to respond to the NIF, it becomes final in 30 days.  At the I-9 hearing, employers are able to raise good faith defenses (that is the employer made reasonable efforts to comply with the paperwork requirements of section 274A (b) of the INA.)  If the employer looses at the hearing or fail to request a hearing or failed to attend the hearing, civil penalties will likely be imposed considering the size of the employer, lawful status of the employees involved, the seriousness of the infractions including prior I-9 violations, and the good faith efforts of the employer to comply with its obligations under the INA.  Furthermore, employers who knowingly employ unauthorized workers or fail to comply with section 274A (b) of the INA could also face criminal prosecution.  Employers convicted in federal court of having engaged in a pattern or practice of knowingly hiring unauthorized workers, or continuing to hire them after November 6, 1986 are likely to face fines and up to a maximum of six months in federal prison.  Moreover, employees who use fraudulent documentation to gain U.S. employment can be subjected to civil fines and criminal prosecution resulting in up to 5 years in federal prison.  The penalties that we have been discussing are under the Immigration and Nationalization Act (INA).  But employees and employers who knowingly violate the INA could be subjected to other federal statutes that impose much harsher civil fines and criminal punishment.  The Internal Revenue Code, U.S. Code 26; for example, imposes very severe civil fines and criminal penalties for taxpayers who violate U.S. federal tax statutes associated with misclassification of workers as independent contractors when in fact they are employees.  Worker misclassification errors can place employers in serious legal jeopardy.

employment eligibility verification

The burden of proving compliance with employment eligibility verification requirements is on U.S. employers.  Suggested steps to get ready for an I-9 raid:

  1. Make a current list of all of your employees (current, new hires, rehires, terminated);
  2. Review Form I-9 files on everyone on the list (don’t forget that all employers must have an I-9 file for all employees, including U.S. citizens, Nationals, Lawful Permanent Residents and anyone else working as an employee);
  3. Check the I-9 files for the validity of the documentation (make sure nothing has expired because identity and work eligibility documentation must be current; these documents cannot be expired);
  4. Check off each employee as they are successfully vetted on the employer employee list as they are cleared;
  5. Follow-up on any discrepancies. Contact the worker for updated or corrected information and timely resolve the issue;
  6. Document the company’s Form I-9 procedures and periodical compliance with those procedures. Don’t’ forget to check for government changes in the requirements as part of the company’s due diligence process.  Document due diligence and good faith efforts to comply with I-9 requirements—this all should be maintained in your I-9 Due Diligence Files;
  7. Follow-up and follow up some more on I-9  discrepancies and release any worker that cannot be vetted to work lawfully in the United States;
  8. Assign I-9 duties to competent individuals within the company or advisors competent in the law, taxes and immigration workplace matters. Exercise due diligence:  gather pertinent information; understand the company’s I-9 obligations and cooperate with authorities in workplace enforcement of employment eligibility issues.

These are merely some suggestions designed to cut down on the fear and confusion that is often associated with ICE workplace enforcement.  Due diligence can be a stress buster; while failing to prepare for a workplace enforcement of employment eligibility rules  can be as serious blow to wealth as a heart attack can be to health.

This law blog is written by the Taxation | Litigation | Immigration Law Firm of Coleman Jackson, P.C. for educational purposes; it does not create an attorney-client relationship between this law firm and its reader.  You should consult with legal counsel in your geographical area with respect to any legal issues impacting you, your family or business.

Coleman Jackson, P.C. | Taxation, Litigation, Immigration Law Firm | English (214) 599-0431 | Spanish (214) 599-0432