EB-5 Extension

The United States Congress’s passage of the Omnibus Bill to fund the federal government this December 15, 2015 represents an important, if unexpected, extension of the EB-5 foreign investment program.

With a history of over 25 years, the EB-5 program has been under heavy scrutiny this current Congressional session. Concerned with potential abuse and fraud in the program, the program reforms would have raised the minimum investment thresholds for EB-5 consideration, changed the current definition of Targeted Employment Areas (TEAs) – which are the primary regions of investment the federal government wants to direct EB-5 investment towards, and adding additional oversight to the program (in particular, the regional centers that manage EB-5 project funding).

However, due to the inability of Congress to reach any common consensus regarding EB-5 reform before the deadline to pass the Omnibus Bill, the United States government has effectively preserved the EB-5 program in its current form for another year. This means that the $1,000,000 minimum investment for the EB-5 ($500,000 investment for TEAs) is preserved, as is the annual 10,000 visa cap.

Congress is expected to revisit the program because this extension only lasts one year instead of the typical 5-year extension period. As the program currently stands, the extended rules will last through September of 2016.

Buda Law Group urges parties who are considering the EB-5 visa to make preparations and inquiries with the intent of filing before September of 2016. We anticipate that any Congressional action regarding the EB-5 program in 2016 will result in a stricter definition of TEA investment areas, higher minimum investment thresholds, and higher USCIS fees associated with the application.

Thank You,

John B. Buda, Esq.

www.budalawgroup.net

office: 626-796-1422

john.buda@budalawgroup.net

1201 W. Huntington Dr. Suite 209

Arcadia, CA 91007

Fiance Visa Problems

In the wake of the tragic terrorist incident in San Bernardino, public scrutiny regarding the K-1 visa, commonly referred to as the “fiancée visa,” has intensified.

Tashfeen Malik, one of the shooters in the attack, entered the United States in 2014 through a K-1 Fiance Visa sponsored by her husband, the other perpetrator in the incident. Lawmakers have responded by questioning the validity of the background checks and screening process that occurs before individuals are allowed into the United States, in an attempt to understand how Malik was allowed entry into the United States in spite of inconsistencies in her immigration petition and her background. Much attention has been given to the fact that Malik offered an invalid overseas address on the application, something that critics of current immigration policy say should have immediately disqualified her from entry.

In response to a Senate panel hearing, Edward Ramotowski, the United States State Department’s deputy assistant for visa services, confirmed that, “All applicable security checks were done for that individual, Ms. Malik… That includes an immigrant visa interview, it includes facial recognition screening, it includes interagency counterterrorism screening, it included a review by the visa security unit of immigration and customs enforcement, which as a detachment in Islamabad in our embassy there and it included the full biometric fingerprint checks and in all cases, the results of those checks were clear.”

With 14 dead in the San Bernardino attack, the debate over visa security has intensified as lawmakers attempt to determine whether the screening process can be improved to prevent future incidents. Homeland Security Secretary Jeh Johnson has said that the Obama administration is already in the process of reviewing the K-1 program and process.

However, a look at the current screening process reveals a through and arduous process that requires the submission of key identification documents that include a birth certificate, evidence of financial support, and a police statement of clear criminal record, among others. The average processing time for a K-1 visa takes between 6 to 12 months before an individual is allowed to enter the United States, and the K-1 visa has historically garnered a reputation as one of the most strictly screened visas, even before Malik somehow found her way through the system.

Also important to note is that Malik is the only person in the history of the K-1 visa program to take advantage of the program to enter the United States to commit a terrorist act. Indeed, 9 of the top 10 countries from which K-1 visa applicants originate are not included on the list of countries designated as “particularly terror-prone.”

It seems more likely than not, though, that some changes in the screening process for fiancée visas will come in the future. Buda Law Group anticipates that the timeline for securing a K-1 visa in the future will be extended even further from its current average, as more thorough security checks are implemented in the future. Typically, once a K-1 applicant completes the overseas consular interview and enters the United States, no follow-up visits or interviews are conducted by USCIS officers within U.S. borders. This policy could potentially be amended to require additional follow-ups from the USCIS after entry into the U.S.

One final issue of note is the fact that USCIS is already struggling to process the number of visa applications of all kinds that are currently filed. Any change that will require additional screening and review of cases currently pending could potentially have adverse effects on the amount of immigrant petitions of all types that USCIS is able to process each year.

Thank You,

John B. Buda, Esq.

www.budalawgroup.net

office: 626-796-1422

john.buda@budalawgroup.net

1201 W. Huntington Dr. Suite 209

Arcadia, CA 91007

Immigration Reform in Congress?

The election of new Speaker of the House Paul Ryan (R) of Wisconsin presents very real consequences for the prospects of immigration reform coming within this election cycle, and potentially even into the next presidency. As revealed in a series of interviews on Sunday, Rep. Ryan has no plans to work with the White House on a comprehensive immigration reform bill.

“I think it would be a ridiculous notion to try and work on an issue like this with a president we simply cannot trust on this issue,” Rep. Ryan said, referring to the November 2014 executive order issued by President Barack Obama to protect millions of undocumented immigrants from deportation. Since challenged in courts, the controversial executive orders have proven to be a rallying point around which anti-immigration conservatives in Congress have flocked.

Speaker Ryan was widely reported to have adopted the hard line stance on immigration reform as a condition of gaining the backing of the House Freedom Caucus, a group of nearly 40 lawmakers who have steadily gained influence in Washington since its founding this year. By ruling out any hopes of a comprehensive immigration reform bill reaching a vote by the end of the President’s current, and final, term, the GOP effectively punts any update on immigration policy to at least early-2017.

Complicating Rep. Ryan’s stance is the Freedom Caucus’s contentious, if short, history in leading the charge to block President Obama’s executive orders through Congressional action last year. The HFC has a reputation for being notoriously hard to negotiate with, accepting no compromises and drawing the ire of even their fellow Republicans. It would not be surprising to see the HFC adopt the same stance should the Democratic Party take the White House in the upcoming 2016 elections, but will the new Speaker of the House value loyalty to his backers or the lure of a fresh mandate to pass immigration reform (an issue he has a complicated history with)?

Until 2017, at the very least, we have a firm answer regarding immigration reform: a resounding NO. After the elections? It depends on which Paul Ryan emerges. Will it be the Paul Ryan who argued for a path to citizenship in a comprehensive immigration reform bill in 2013? Or will it be a Paul Ryan toeing the party line?

Thank You,

John B. Buda, Esq.

www.budalawgroup.net

office: 626-796-1422

john.buda@budalawgroup.net

1201 W. Huntington Dr. Suite 209

Arcadia, CA 91007

FAQ: EB2 NIW Entrepreneur Visa

Q:        Do I need to show investment in a business like the EB-5 or E-2 visa?

A:         No.  There is no requirement by the USCIS to demonstrate a minimum investment in a business.  However, the USCIS recommends that the petitioner demonstrate a successful history of entrepreneurial activity in their native country.  Regardless, the Buda Law Group has had a 100% success rate with approvals for individuals that were just starting up a business here in the United States with no prior business experience or history before they immigrated; The caveat being that a business plan needs to be provided to show the required capital for the business to be feasible, let alone successful, and this is heavily scrutinized by the USCIS.

Q:        Are independent letters of support required for my EB2 NIW petition?

A:         The USCIS recommends including letters of support from both individuals that have personal knowledge of the petitioner and those that do not.  Buda Law Group has a consistent practice of including both in every petition we file.  Furthermore, if you are an individual that does not have any previous successful business experience from your home country, letters of support (both independent and not) will be heavily relied upon by the USCIS to establish character and ability to successfully start up a business in the United States.  Buda Law Group generally includes 5 to 7 recommendation letters for its petitioners.

Q:        What distinguishes a successful NIW from an unsuccessful NIW?

A:         There is no specific line that distinguishes a successful NIW petition from an unsuccessful one. The petitioner has the burden of proof to provide sufficient evidence to show that he or she meets the requirements for a National Interest Waiver. However, the stronger letters of recommendation and attorney petition letter presented, the more your chances of approval improve.

Q:        Does the business that I plan on starting up in the United States in regards to the NIW petition have to be of national interest in scope?

A:         Absolutely.  This is the major arguing point in the legal memorandum that will be included in your petition.  The focus is to demonstrate that the national interest of the United States would be adversely affected but for this new business.  Buda Law Group has had a myriad of different entrepreneurs from numerous fields that have all been successful with their petitions.  The common factor being that their attorneys at Buda Law Group were able to successfully argue and demonstrate that the business would substantially improve the United States.

Q:        What is a “Request for Additional Evidence”? Does it occur more frequently under the NIW Entrepreneur category as opposed to regular NIW applications?

A:         Sometimes the USCIS is not convinced that the alien seeking an NIW has met the burden to prove that he/she qualifies for an NIW. In such cases they will typically submit a “Request for Additional Evidence” seeking certain forms of evidence that the USCIS finds lacking. Buda Law Group takes great pains to present a strong case so that it may be approved without a request for additional evidence. Nevertheless, there is no way to predict how a particular USCIS officer reviewing a particular case will respond, and sometimes even the strongest of cases receive a “request for additional evidence”. Even in such situations, our cases are always approved after we prepare and submit the additional evidence that the USCIS has requested.  The USCIS does not scrutinize NIW Entrepreneur category petitions any more than non-entrepreneur petitions.  However, it is our opinion at Buda Law Group that an entrepreneur seeking to apply for the EB-2 category visa do so under this specific subsection of the visa, due to its rare nature and opportunity to provide documents that would normally not be included in a petition.  For example, a well drafted business plan can truly demonstrate to the judicial officer the true nature of the business and how it demonstrates substantial intrinsic merit in the national interest of the United States.

Thank You,

John B. Buda, Esq.

www.budalawgroup.net

office: 626-796-1422

john.buda@budalawgroup.net

1201 W. Huntington Dr. Suite 209

Arcadia, CA 91007

L1 and E2 Visa for Russians

The USCIS regularly releases data regarding the adjudication of L-1 petitions and E-2 Visas.  This data reveals that the denial rate of L-1 cases rose over 10% from FY 2012 to FY 2013 and in FY 2013, and that an astounding 35% of all L-1 petitions filed were denied.  Thankfully, these numbers have been slowly decreasing as the United States government is easing its tension towards L-1 visas.  The number of E-2 approvals has stayed stagnant over the years, with the exception of the rise in popularity of the EB-5 Visa, which is similar but mostly used by citizens of countries that do not fall under the category of approved E-2 nations.  Russian applicants have seen a steep rise in approval rates for the past decade or so, as tensions between our nations are lower than ever.  Bilateral relations between the former Cold War foes have been strained in recent years over issues including Russia’s granting of asylum to U.S. fugitive Edward Snowden and the passage of the U.S. Magnitsky Act, which allows for sanctions against Russian human rights abusers. But the countries have made progress on visa rules for their citizens.  The following are short summaries of the two visa categories being discussed:

The L-1A intra-company transferee classification applies to qualified executives and managers within multinational companies. These individuals can be transferred from their foreign employer to work for up to seven years in the United States for an appropriately affiliated U.S. company. The company must continue to operate as a multinational company for the duration of the employee’s L1A status.

An E-2 Visa is a Visa Classification that is available for foreign nationals who wish to live in the U.S. to develop and direct the operations of a business.  The business can be large or small and an E-2 Visa is a great Visa option for those who want to start a business.

Over 250,000 nonimmigrant visas were used to Russians by the USCIS in 2014, with an estimated 15 percent increase of that number for the 2015 year.  Now is the best time for Russians to be applying for these visas, but they should be aware of complex application requirements and procedures that are in place.  Buda Law Group specializes in L1 and all varieties of investor visas (including E2 and EB5).  We also have Russian speaking legal experts that are ready and eager to help with all of your questions and concerns.

Please contact the following Russian Hotline number that Buda Law Group offers specifically for its potential Russian clients:  (310) 245-2809

Thank You,

John B. Buda, Esq.

www.budalawgroup.net

office: 626-796-1422

john.buda@budalawgroup.net

1201 W. Huntington Dr. Suite 209

Arcadia, CA 91007

EB-5 News Summer 2015

EB-5 News Summer 2015.  Last week the White House released a statement regarding immigration reform.  It included vague statements on EB-5.  The White House said the Department of Homeland Security will create rules requiring conflict-of-interest disclosures by Regional Center principals, background checks, public disclosure requirements, and increasing the minimum qualifying amount of investment.

More importantly, The Leahy-Grassley EB-5 Regional Center extension bill S. 1501 was proposed, which will at least temporarily counter the increased minimum investment amount on TEA’s.  If enacted as drafted, this bill will permit filing an “exemplar” 924/526 before September 30 (when the current statute expires).  In doing so, the regional center you apply with will lock you in for a project at the $500,000 rate instead of the new bill’s $800,000 minimum investment amount, and the Targeted Employment Area (“TEA”).  Under current USCIS policy, to file an exemplar, a project must be “shovel ready”.  The Leahy-Grassley S. 1501 bill does not use the phrase “shovel ready”, but that is a simple term to gloss over the specific details that in a nutshell require the proper permits, legal agreements, contracts, and corporate structure in place.  Since the advantages of the $500,000 investment and TEA are so great, if possible, Buda Law Group highly recommends that potential applicants should file an exemplar before September 30^th, 2015.

Most important, the White House said the Department of State will amend the Foreign Affairs Manual (the rules for American Consuls) to include guidelines for potential EB-5 investors to obtain tourist (B-2) visas.  This would allow investors to come to the U.S. to examine or monitor potential EB-5 investments if they otherwise qualify for a visitor visa.

This is very good news.  Buda Law Group is pleased to help potential investors who need assistance with tourist visas to visit the U.S. to see EB-5 projects.

If any further questions exist, they will gladly be answered by the team here at Buda Law Group.

Thank You,

John B. Buda, Esq.

www.budalawgroup.net

office: 626-796-1422

john.buda@budalawgroup.net

1201 W. Huntington Dr. Suite 209

Arcadia, CA 91007

Russia EB-5 Investment Visa

Because the investment required by the EB-5 program is sizable, it is important that EB-5 investors understand all components of the EB-5 process.  Choosing the right EB-5 project is particularly important if the EB-5 investor is to be successful.  Buda Law Group has close personal networks with several regional centers throughout Southern California.  Even though EB-5 investors can form their own new commercial enterprises, approximately 90 to 95 percent of all EB-5 visa applicants invest in a regional center project.

EB-5 investors must direct their required capital investment to a specific EB-5 project.  EB-5 investments ($500,000 if in a low income area) must be made in an EB-5 project that is considered to be a new commercial enterprise and that will lead to the creation of 10 fulltime jobs for U.S. workers.  New commercial enterprises are defined as lawful, for profit businesses that were created after November 29, 1990.  Older enterprises may qualify if the EB-5 investment leads to significant business restructuring or increases the number of employees or net worth of an existing business by 40 percent.  The enterprises can be structured in any number of ways, such as a sole proprietorship, limited or general partnership, corporation, business trust, or as other publicly or privately owned business structures.

EB-5 projects assume many different business models and operate within many different industries.  Types of EB-5 projects include but are not limited to:

• Retail stores
• Hotels
• Sports stadiums
• Restaurants
• Agricultural developments, including wineries and farms
• Electric vehicles
• Manufacturing
• Biotech and medical technologies
• Casinos
• Entertainment venues
• Convention centers
• Office buildings

Choosing which project one wants to invest in, whether it be through direct investment or with a regional center, can be a daunting decision involving many considerations which will be the topic of the next blog.  The following is a chart detailing EB-5 visa statistics and origin countries from FY2014.

It’s visible that Russia EB-5 yielded 100 visa approvals, a total that makes up less than 1 percent of the available EB-5 visas with the USCIS.  The possible reasons for these low numbers of Russian investment in comparison to the vastly more significant Chinese is theorized in a previous blog which can be found in Buda Law Group’s article archive or search function.

The team here at Buda Law Group has Russian speaking attorneys and paralegals, which can assist you with every question you may encounter.  Thus far, Buda Law Group has a 100% success rate with Russian EB-5 applications, but would really like to see that number listed in the above chart grow and eventually become a contender with Chinese investors.  Please contact the following Russian Hotline number that Buda Law Group offers specifically for its potential Russian clients:

(310) 245-2809

For all other immigration needs, which the team here at Buda Law Group would be more than happy to assist you with, please see below.

Thank You,

John B. Buda, Esq.

www.budalawgroup.net

office: 626-796-1422

john.buda@budalawgroup.net

1201 W. Huntington Dr. Suite 209

Arcadia, CA 91007

Same-Sex Marriage

The U.S. Supreme Court ruled Friday that Same-Sex Marriage is a constitutional right throughout the country, a historic victory for gay rights advocates.  This decision, which strikes down bans against gay marriage that had previously existed in 14 states, comes after decades of protest and litigation on behalf of gays and lesbians.

Justice Kennedy had the following words to say about this historic decision that will change the course of the country:

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage.  Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves.  Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law.  The Constitution grants them that right.”  – Justice Kennedy

Buda Law Group steadfastly agrees with this ruling and has had the same philosophy regarding its marriage applications over the past several years.  Over two years ago, Buda Law Group also made history when we were the first firm in Los Angeles County to legally process and win a Same Sex marriage visa application and interview in Los Angeles County.  At Buda Law Group, we are fully prepared to handle the entire application process for all newly eligible couples. Any and all proactive steps that exist in order to help the application go through with the USCIS will be taken.  Buda Law Group has a 100% success rate with marriage backed green card applications.

If any further questions exist, they will gladly be answered by the team here at Buda Law Group.

Thank You,

John B. Buda, Esq.

www.budalawgroup.net

office: 626-796-1422

john.buda@budalawgroup.net

1201 W. Huntington Dr. Suite 209

Arcadia, CA 91007

EB2 NIW Entrepreneur Update

Last year, we at Buda Law Group released an article clarifying how entrepreneurs can not only qualify for green cards under the EB2 NIW (National Interest Waiver) petition category, but rather can become supreme candidates for National Interest Waivers due to the unique and profound benefits they and their companies pose to the national economy – through the stimulation of foreign and domestic investment, the creation of jobs, and the impactful innovation resulting from their innate and founding leadership abilities. The policy and operational initiatives backed by the Director of the USCIS have received continual support and encouragement from an array of governmental agencies, and have retained the assertion that attracting entrepreneurs is a definite and optimum strategy for growing the national economy and maintaining the United States’ competitive-edge over foreign counterparts.

Since we began our commitment to joining the USCIS’ quest for high-impact entrepreneurs who pose substantial benefits to the United States, we have received a significant influx of entrepreneurial clients.  As we at Buda Law Group are grounded in providing customized petition strategies for each client, our mission is to provide specifically-tailored packages to each entrepreneurial client has insofar been a major success.  One of our most recent approvals involved a tech entrepreneur who established solar farms throughout Southern California – a vital and emerging area of the global and national economies as well as the energy field nationally.

While emerging market entrepreneurs are not the sole focus or base of our entrepreneurial clientele, there are clear-cut lessons and takeaways that can be derived from the success of these entrepreneurs.  First and foremost, the USCIS values – above all – objective evidence.  Whether that is in the form of citations to publications for prominent researchers, record sales and magazine features for artists and musicians, or gross revenues and job creation statistics for entrepreneurs, the USCIS and Administrative Appeals Office (AAO) have consistently and mutually held that corroborating evidence of one’s past influence in the form of unbiased, numerical evidence is paramount to petition approval.   That being said, the unavailability of this type of evidence does not bar one from petition approval; it simply makes the cumulative and creative packaging of one’s evidentiary and qualitative credentials more critical. Regardless of petition category, the Immigration Officer must review the totality of evidence submitted and determine whether the overall pattern of evidence justifies petition approval.

At Buda Law Group, we take pride in only submitting petitions which we feel are strong cases for approval, and it has become apparent, now more than ever, that we along with the USCIS, agree that there are few more qualified candidates for National Interest Waivers than those entrepreneurs who can deliver dual-benefits to the national interest via (1) the products/services they provide and revolutionize; and (2) the substantial impact to the national economy through job creation and investment stimuli.   Ultimately, we welcome all case inquiries and truly enjoy providing case evaluations for experts from all around the world.  The USCIS has finally started to recognize that foreign entrepreneurs are vitally important to the success of the US economy.  If you have a master’s degree (or a BA with several years of experience) and you own your own company, please give us a call today for a free consultation.

Thank You,

John B. Buda, Esq.

www.budalawgroup.net

office: 626-796-1422

john.buda@budalawgroup.net

1201 W. Huntington Dr. Suite 209

Arcadia, CA 91007

EB-5 Visa Bulletin Update

The Department of State has released its June 2015 visa bulletin and the China EB-5 cut-off date of May 1, 2013 did not change. The quota for other countries remains current. The following processing times have been updated by the USCIS:

● I-526s moved from 14.2 months to 14 months
● I-829s moved from 12.3 months to 12.7 months
● I-924s moved from 11.7 months to 12.1 months

In addition, the state of California has released its new Targeted Employment Area (“TEA”) data. A TEA is either a “high unemployment area” in an urban setting (being part of a metropolitan statistical area) that has experienced a critically high unemployment rate. This data is used to determine eligibility in an EB-5 investor visa application.  If the EB-5 investment in a new commercial enterprise is made in a Targeted Employment Area (TEA), the required investment is decreased to the $500,000 investment level from the original    $1 million requirement.

New TEA’s must now have an average unemployment rate of 9.3% or greater (150% above the national average) to qualify investors for a $500,000 investment instead of $1 million. Some areas that were designated as TEAs last year no longer qualify. At the same time, projects located in areas that did not have high unemployment based on the old numbers may be eligible for TEA designation today.

The team here at Buda Law Group has completed many successful EB-5 applications with the USCIS.  Let us know if you need help understanding the EB-5 visa bulletin, or in determining whether your project is now located in a TEA, or for any of your immigration needs.

Thank You,

John B. Buda, Esq.

www.budalawgroup.net

office: 626-796-1422

john.buda@budalawgroup.net

1201 W. Huntington Dr. Suite 209

Arcadia, CA 91007