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Obtaining a green card through investment isn’t as easy as some might hope, and recent events will only make it more difficult. Earlier this year the news of a Vermont EB-5 project having misappropriated investor funds hit the media circuit. That State’s Department of Professional Regulation and its Attorney General’s office filed its amended complaint on June 15, 2016, which document sets forth a number of allegations, including the program’s managers’ direct misappropriation of investor funds for their personal enrichment.  You can find the complete complaint here if you want to review all the gritty details.

In the wake of these and other concerns about the EB-5 program that have come to light in recent years, investors are predictably reticent to drop $500,000 or the full $ 1 million dollar investment amount into a business project that - because of the very nature of the law which governs the program—must be money “at risk” and therefore potentially lost.  Fundamentally, the character and record of the businesses and individuals involved in the EB-5 project you might be considering will determine whether your having confidence in the project is warranted or not.  But, if a potential investor is determined not to risk their capital in this manner, yet is still convinced that permanent residence in the U.S. is unquestionably in their immediate future, it might be wise to consider other options that might open a path to obtain a green card through investment in an EB-5 business.

On the other hand, there are numerous considerations that are based upon the facts of every investor’s particular circumstances (e.g., the age of any children, a spouse’s plans, industry, credentials, etc.) that the investor will want to discuss intensely with his or her immigration counsel to determine if EB-5 is the only option, and if so, how to determine whether a particular project is trustworthy or not.  

Before selecting a potential immigration attorney to assist with obtaining your green card through investment, one of the key issues to raise is the referral fee potentially paid to that lawyer by a regional center.  You need to know, and the attorney is required to disclose, if there is any sort of relationship between the lawyer and a regional center EB-5 business that might impact his or her objectivity, before you decide to hire this professional.

3 Tips for Obtaining a Green Card Through Investment

Tip #1: Know the Difference Between Creative Advocacy and Committing Perjury

There are numerous  creative lawyers out there that have a number of successes under their belt in getting their business clients a green card through investment where stretching the truth might have been a component of the process.  A great number of these same clients have since been deported or even criminally prosecuted by our federal authorities.  This is why it is extremely important that, well before you give your attorney the okay on the case strategy that will be used to get your green card through investment, you are clear on what the difference is between stretching the truth and creatively, intelligently arguing the law.  Let’s review a couple of hypothetical examples to help make this as clear as possible.

Example One.  Alberto is an engineer from Mexico who has recently won a prestigious national award in his field.  He also is a member of a professional group that he can gain admission to by paying annual dues and submitting proof of his licensure.  Alberto hopes his recent award will help him meet the onerous requirements of the EB-1 extraordinary ability category and thus allow his attorney to file a to self-petition for his immediate U.S. residency in lieu of him needing to find an employer sponsor for that benefit.  Now, despite the fact that the law requires that, in order for membership in a professional group to count as one of the three elements toward satisfying the extraordinary ability threshold for the EB-1 category, it must involve membership in an elite group of which only those members of the profession responsible for “outstanding achievements” are admissible.  Despite this, his lawyer argues that his having won the award is one of the reasons he is a member of this organization, and Alberto signs off on this application.

Example Two.  Li is a Chinese entrepreneur hoping to obtain an L-1A “new office” visa for his family’s electronics manufacturing business.  In order to receive approval in this category he needs to show that the business has obtained a U.S. location from which it will operate, also that Li has been employed as an executive or manager by the Chinese company, and that he will work in a similar capacity for the U.S. business within one year of the L visa’s approval.  Li and his family are worried that the U.S. business does not yet have sufficient capital to pay his salary; with their lawyer they discuss the strong likelihood that current U.S. clients of the Chinese business entity will perhaps become clients of the U.S. entity, thereby helping to capitalize that business for the purpose of sustaining salaries and costs.  Subsequently, they alter the business plan that will be included in their L-1A visa petition to reflect this prospective future income stream.

The important distinction which exposes Example One as an unlawful misrepresentation which could subject the applicant to a denial and worse, versus Example Two being a perfectly excellent illustration of strong lawyering, is that Alberto in Example One goes along with his lawyer’s distorting the facts in that his having won an award was not a requirement of his membership in the professional group to which he was granted membership.  This, to be frank, was an outright lie that in signing the attestation at the bottom of the application, Alberto became complicit in.  “I certify, under penalty of perjury, that the contents of this attestation and the evidence submitted with it are true and correct” is the language of this clause, meaning that if anything therein is incorrect, the signor can be subject not just to a denial of the application, but to deportation, permanent inadmissibility to the U.S., and even criminal prosecution.

Example Two is not a lie, but is rather an honest prediction about the likelihood of Li’s business receiving future income.  If Li lied about these clients existing or any of the underlying facts relating to the supposition that they are likely to become U.S. entity clients, that would instead put Example Two in the same category as Example One.  However, it is not a lie to assert a prediction that is based upon current fact.

The important distinction which exposes Example One as an unlawful misrepresentation which could subject the applicant to a denial and worse, versus Example Two being a perfectly excellent illustration of strong lawyering, is that Alberto in Example One goes along with his lawyer’s distorting the facts in that his having won an award was not a requirement of his membership in the professional group to which he was granted membership.  This, to be frank, was an outright lie that in signing the attestation at the bottom of the application, Alberto became complicit in.  “I certify, under penalty of perjury, that the contents of this attestation and the evidence submitted with it are true and correct” is the language of this clause, meaning that if anything therein is incorrect, the signor can be subject not just to a denial of the application, but to deportation, permanent inadmissibility to the U.S., and even criminal prosecution.

Example Two is not a lie, but is rather an honest prediction about the likelihood of Li’s business receiving future income.  If Li lied about these clients existing or any of the underlying facts relating to the supposition that they are likely to become U.S. entity clients, that would instead put Example Two in the same category as Example One.  However, it is not a lie to assert a prediction that is based upon current fact.

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Tip #2: Don’t Confuse Current and Future Immigration Statuses

Even if an investor plans to ultimately transition to a permanent resident (LPR) status from a different visa type, until that LPR status is granted, it is critical that the initial theory of the case and strategy implemented by the investor and his attorney be consistent with the unique “pre” and “post” stages of that strategy.  For example, if an E-2 (“pre”) treaty investor hopes to transition to an EB-5 (“post”) visa at a later stage in the process, it is important to not run afoul of the “intent to depart the U.S.” requirement that is inherent in the E-2 visa category statute during the “pre” stage by representing to the government that the plan is instead to permanently remain in the country.

Or to give another example, an L-1B visa holder will typically not be eligible to change status later via an EB-1 transferring manager or executive application when their position in their home country and their U.S. employment role do not sufficiently demonstrate as managerial or executive so as to meet the requirements of the EB-1 petition.  An applicant in this situation may thus want to reconfigure the strategy from the very beginning.  This is another among many reasons why it is often essential to carve out a proper strategy with your attorney from day one when obtaining a green card through investment, and that you, together with all of the business’ stakeholders, thoroughly comprehend the ground rules which govern your behavior for each stage and for the end goal.

This issue is often overlooked with it comes to the O-1 visa, because this “extraordinary ability” visa holder is typically a person of significant societal rank and esteem.  Such status, however, never serves as a carte blanchepermission for failing to carefully abide by the proscriptions and minutiae inherent in the Immigration Code.  To put it simply, status is never a substitute for following the law, particularly in a country that prides itself on growing out of humble beginnings.  Unfortunately, we have too often witnessed that, seemingly, there is nothing that a Customs and Border Protection officer at the airport who woke up on the wrong side of the bed that day likes more, than to deny admission to a presumptuous noncitizen who behaves in an arrogant manner while violating the law.  That noncitizen may quickly find he or she is sitting on the next plane back home with an order of deportation in his or her hand.

Here, the O-1 visa holder will want to wait for approval of his or her residency application before travelling abroad, or do so only after an application for advance parole has been approved.  Moreover, even though most O-1 visa recipients will have met ostensibly identical requirements as those for needed to be demonstrated for EB-1 residency, USCIS in fact applies an increased level of scrutiny for the EB-1 residency application as compared to the O-1 nonimmigrant visa application.

Tip #3: Develop a Comprehensive “Novel-like” Theory of Your Case

Much like at Harvard University’s trial advocacy training programs, a strong lawyer will develop a theory of the case for every client, and will argue this theory with a vigor and strength of the evidence so forceful that you will be able to almost smell success before the “dish” is even out of the oven.  Consider here that your attorney is the author of a great novel, in which you are the protagonist, one whose goal is to obtain a green card through investment.  If you think of the five-stage story structure of a typical work of fiction, you can actually visualize how this applies to your case quite nicely (this is true despite the fact that the “meat” of the petition will typically be in the first two bullet points):

  • The exposition is the setting of the scene in describing the relevant personal and business background information;
  • The rising action is the building up of the purpose of the application and the benefits it will bring after approval - both to the beneficiary, the petitioner, and the U.S. economy;
  • The climax is the assertion that the application meets all of the elements of the visa category;
  • The falling action or tying up loose ends can be seen as the responding to potential issues or shortfalls that might exist in your petition by preempting those doubts with legal and factual ripostes;
  • The resolution is the formal request for visa approval.

The table of contents to that “book” is comprised of the various legal requirements of your visa petition, and the sub-chapters, paragraphs and sentences are the supporting details and the documenting of these elements.  The table of contents can also act as an organizing outline that lawyer and client can together flesh out by filling it in with pieces of evidence and narrative of the petition that will ultimately come together in an exemplary “book” as an immigration petition that offers the greatest chance of approval.

For more information on how to obtain your green card through investment, contact Katz Law Office, Ltd. today for a free consultation.

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None of the advice contained in these materials serves as a substitute for individualized legal representation by a licensed attorney with experience in the practice area.

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