Hi, How Can We Help You?

Category Archives: Consult Immigration Lawyer

Ajmera Law   →  Consult Immigration Lawyer
July 16, 2023
July 16, 2023

New EB-5 RIA Rules Provide More Safeguards to Investors

Author By Prashant Ajmera Categories Consult Immigration Lawyer, E2 business visa, EB-5 US Investor Visa, US Immigration attorney, US Immigration Lawyer, USA

The provisions in the New EB5 Reform and Integrity Act will allow investors to make investments in Regional Center EB-5 projects with more confidence. 

These are FAQs on new New EB5 Reform and Integrity Act effective 15th March 2022 to 30th September 2027

  1. What are the new EB-5 rules that came into effect in March 2022?

Ans: Under new EB-5 rules, the investment amount has increased from US $500,000 to US $800,000 for rural areas, high unemployment areas or an infrastructure project. The amount has been increased from US $1,000,000 to US $1,050,000 for any other area and any other project /business. In either case, the investment must be made into a new business entity and must create at least 10 jobs for Americans.

  1. For what period of time will this new rule be applicable?

Ans: The new rules are effective for a period of five years, that is, until 30th September 2027.  

  1. How will this new rule affect my pending EB-5 petition?

Ans: The new EB-5 rules provide for grandfathering of pending petitions, meaning that all pending EB-5 petitions will not be affected by these new rules. The EB-5 program is reauthorized until September 30th, 2027. The pending petitions will continue to be processed even after this date in the event the outcome of the petition is not decided.

  1. What is a rural area?

Ans: In general, an area with a population of less than 20,000 people as per the latest US census is termed as a rural area. 

  1. What is a high unemployment area?

Ans: An area is designated by the Secretary of Homeland Security as a high unemployment area when unemployment is 150 per cent of the national average unemployment rate.

  1. Is there any quota for EB-5-based Green Cards in the USA?

Ans: Yes, there is an annual quota of 10,000 Green Cards per year. From this quota, 20% is reserved for rural areas, 10% for high-unemployment areas and 2% for infrastructure projects. 

  1. Who decides if an area is a high unemployment area?

Ans: Only the Secretary of Homeland Security or a designee of the Secretary can determine if an area can be designated as a high unemployment area. The federal, state or local government does not have the authority to designate a high unemployment area.

  1. What is an infrastructure project and who determines which projects are infrastructure projects?

Ans: An ‘infrastructure project’ means a capital investment project in a filed or approved business plan, which is administered by a governmental entity (such as a Federal, State, or local agency or authority). The Secretary of Homeland Security or a designee of the Secretary will determine if a project is an infrastructure project or not. 

  1. Will there be a rise in the EB-5 investment amount in the near future?

Ans: Under new rules, the EB-5 investment amount will increase every five years as per the consumer price index. The next revision will be on or after 1st January 2027. 

  1. I am in the US on legal status, so when can I file for an EB-5 petition (I 526) and an adjustment of status (I 485) petition?

Ans: Under the new rules, any foreign national who is on a legal visa status may file a petition for EB-5 and adjustment of status at the same time. In other words, you can file for I 526 and I 485 at the same time.

  1. Under new rules how will “indirect job creation” be calculated”?

Ans: Under new rules, only 90% of the estimated indirect job creation will be considered for job creation and if it is indirect job creation in a real estate project, then only 75% of the estimated jobs will be considered for job creation.

  1. Is there record-keeping and audits for regional centres under the new rules?

Ans: Yes, under the new rules, regional centres are required to keep a record for a period five years after the last transaction is made and also undergo an audit every five years.

  1. Are projects promoted by regional centres approved by the US government?

Ans: Under new rules, each regional centre must pre-approve its project before it raises funds and before investors file an I-526 petition. Under the old rules, it was voluntary for the regional centres to obtain pre-approval of the project. 

  1. Who can own, run, manage and operate a regional centre?

Ans: Only Green Card holders and American citizens can get involved in owning, managing and operating a regional centre provided – the person has a clean criminal record, does not have any ongoing criminal cases pending against him/her, has never been convicted of any crime such as securities law violations, illegal trafficking of contraband substances and such other violations. Additionally, no foreign government or entity can get involved in a regional centre.

  1. Are persons working for and affiliated with a regional centre subject to any law?

Ans: Under new laws, not only owners but also promoters, directors, managers, employees, associates, marketing agents and other associated personnel of a regional centre must remain in compliance with SEC regulations and other regulations made in this regard.  

  1. What is EB–5 INTEGRITY FUND under the new rules?

Ans: Each regional centre is required to pay US $20,000 and US $10,000 (if the regional centre has less than 20 investors per year) in the EB–5 INTEGRITY FUND. An additional fee of US $1,000 per investor is required to be paid in addition to I -526 petition fees.  This fund will be used for the purpose of management, audit, investigation, site visits, investor awareness, maintaining the integrity of the program and monitoring compliance with the requirements under section 107 of the EB–5 Reform and Integrity Act of 2022.

  1. Do EB-5 direct and third-party promoters (migration agents overseas) need to meet any compliance requirement with USCIS and/or SEC?

Ans: Each regional centre will be required to register their marketing agents, migration agents and such other affiliates with USCIS with their contact details, any signed agreement and fees contract. Promoters will also be required to certify that they are in compliance with the guidelines for third-party promoters; promoting the EB-5 project in compliance with the guidelines provided for the project and also for the visa process.

  1. Are there any changes to the source of fund requirement?

Ans: Under new rules, the investor must demonstrate a legitimate source of funds not only for the investment amount but also for any administrative fees paid to the regional centre.

  1. What if my regional centre does not comply with US regulations and is sanctioned or closed down?

Ans: Under the new rules, if the foreign investor has made an investment in good faith in a regional centre and for any reason the regional centre is TERMINATED OR DEBARRED, it will not have an effect on the EB-5 petition of the foreign investor. The investor will not lose the priority date if the amendment to the business plan and removal of conditions is filed within 180 days of the notification received from the government for the termination of RC. 

  1. How will my money be invested in an EB-5 project?

Ans: The investment amount will be transferred to a separate account maintained by the regional centre. It will be transferred to the project only when it is certified by designated FUND MANAGERS (such as a public accountant, attorney, broker-dealer, investment advisors, etc.)

NOTE: In order to protect investors, various checks and balances have been introduced in the new EB–5 Reform and Integrity Act of 2022. Please refer to the full text of the Act for details.  

This is a very simplified FAQ for a general understanding of the new EB-5 Reform and Integrity Act. You are advised to refer to the complete text of the ACT or consult a qualified attorney for more information.

About Ajmera Law Group:

Ajmera Law Group (ALG) is an Indian law firm that assists Indian students and parents to plan for their or their child’s foreign education and subsequent settlement in a foreign country by offering various options including Residency and Citizenship by Investment and/or global investment.

 

June 16, 2022
June 16, 2022

Why hire the services of an immigration lawyer in India?

Author By Prashant Ajmera Categories Consult Immigration Lawyer, Immigration Consultants, US Immigration attorney, US Immigration Lawyer

Why hiring the services of an immigration lawyer in India is always more prudent than hiring the services of an immigration consultant or agent in India?

When it comes to advice for immigration, visa, and foreign travel, most Indian citizens resort to consulting their travel agents and, more recently, to immigration and student visa consultants. These professionals are not regulated and licensed in India. However, they may be associated with some professional association that does not regulate them.

This has resulted in a large number of immigration and visa frauds in India which we hear and read regularly in print and online media. As per the Ministry of Foreign Affairs’ statement in the Parliament, the Indian government officially receives two complaints per day related to immigration and visa fraud.

It is interesting to note that though Indian citizens spend almost US$17 billion (Rs. 132,832 crores) annually on foreign education and travel, the Indian government has yet to take any concrete steps to regulate travel, immigration, and visa agents. This is a big disservice to unsuspecting citizens who become easy prey for unscrupulous visa agents and consultants because there is no professional or legal entity to hold them accountable.

Hence it is important that every person decides whether it is sensible to seek counsel from an immigration lawyer in India or from an immigration/visa consultant.

Here are some important facts that will help you decide:

 

  1. In India, only Indian lawyers are allowed to dispense advice on legal matters, including immigration and visa.
  2. Lawyers are regulated by law and regulatory bodies and are required to maintain high ethical standards.
  3. Only experienced immigration lawyers in India have the necessary knowledge of Indian and foreign laws that govern the terms and conditions of immigration and visa of another country.
  4. Immigration is a legal matter related to the pertaining acts and rules of the respective country. Hence lawyers specializing in immigration of a particular country are most suitable to provide counsel. They are also authorized to represent foreign nationals.
  5. All information and documents belonging to an individual and/or company are protected by a confidentiality agreement between the client and the lawyer.
  6. Travel agents, student visa agents and immigration consultants are not regulated in India. Hence, in case of fraud, the only recourse available is to file a police complaint.
  7. When you hire an US immigration lawyer, he/she will always act in your best interests because there is no commission or share involved from a third party.
  8. On the other hand, student visa agents and immigration consultants may not act in your best interests as they get a commission from the fees you paid to a foreign education institute, from the project you invested in for EB-5 investor visa, or from a real estate deal in case of for residency and citizenship by investment. Hence they will always try to influence your decision.
  9. Most immigration consultants and agents in India consult immigration lawyers in India or US immigration attorney in India when matters become complex and complicated.
  10. The immigration departments of different countries give credence to legal opinions provided by lawyers only.
  11. If you are looking for a job offer or work visa in a foreign country, always consult foreign recruitment agents who are licensed by the Ministry of External Affairs.
  12. The data published by the Government of Canada shows that cases filed by immigration lawyers have a higher success rate than cases filed by immigration consultants.
  13. As per the Supreme Court of India’s judgment dated March 2018, foreign immigration lawyers are not allowed to open an office or visit India frequently to promote their practice. Hence in the event, you wish to hire the services of a foreign immigration lawyer, you should do it with the help of an Indian lawyer who can protect your rights.

Read the Supreme Court of India’s judgment here  | Read RBI Notification here

 

January 1, 2022
January 1, 2022

Indian Supreme Court Prohibits Practice Of Law By Foreign Lawyers/Law Firms In India

Author By Ajmera Law Group Categories Consult Immigration Lawyer

(This judgment has a direct effect on foreign immigration lawyers, immigration consulting firm, and  real estate developers who wish to attract Indian HNI for residency and/or citizenship of respective country) 

The Hon’ble Supreme Court of India recently passed a crucial verdict that foreign lawyers/firms are not entitled to practice law in India either on the litigation or non-litigation side unless they fulfill the requirement of the Advocates Act, 1961, and the Bar Council of India Rules.

This was very high-profile case and global law firms, associations and many foreign entities were involved in this case which went on for 4 years.

This judgment has a far-reaching effect on the immigration industry and in particular Residency and Citizenship by investment practice in India.

As per the judgment foreign law firms/companies or foreign lawyers do not have an absolute right to practice law in India and they will be governed by the code of conduct applicable to the legal profession in India.

One of the arguments made was that lawyers means who are arguing cases before court, but the Supreme court made it clear that practicing of law includes not only appearance in courts but also giving of opinion, drafting of instruments, participation in conferences involving legal discussion. This regulatory mechanism of India for the conduct of advocates applies to non-litigation work also.

The Advocates Act of India 1961 and the Scheme in Chapter-IV of the Act makes it clear that advocates enrolled with the Bar Council of India “alone” are entitled to “practice law”, except as otherwise provided in any other law.

This means if any person or company or entity in India if is involved in the practice of giving advice of law whether foreign or local law are not entitled to do the same unless they are having license to practice as a lawyer in India and regulated by the Bar Council of India.

In my opinion, immigration agents and consultants in India who are not licensed and regulated and if they are giving legal advice of foreign immigration law are in violation of the Advocates Act of India.

Further observation and clarification made by the supreme court are more crucial.

  • First observation made by the court was, the prohibition not only applicable to any “person in India”, other than advocate enrolled under the Advocates Act, but certainly applies to any “foreigner” also.

 

  • Visit of any foreign lawyer on fly in and fly out basis may amount to practice of law if it is on regular basis. A casual visit for giving advice may not be covered by the expression ‘practice’. This means if the foreign lawyer is visiting in India on a regular basis to give advice to clients in India is likely to be in violation of the Act and subject to prosecution.

 

  • The third and final remarks made by court say all “If in pith and substance the amount of the service to practice of law, the provisions of the Advocates Act will apply and foreign law firms or foreign lawyers will not be allowed to do so.”

In view of the above, not only foreign lawyers but Indian or foreign immigration firm and companies,  registering as a company India and establishing the presence in India and if giving and advise on foreign or Indian law inducing immigration law are also in violation of the Advocates Act of India and subject to prosecution.

Based on this judgment, central bank of India including, the Reserve Bank of India (RBI) also came out with a special notification

“Establishment of Branch Office (BO) / Liaison Office (LO) / Project Office (PO)
or any other place of business in India by foreign law firms” which provided as follows.

  • No fresh permissions/ renewal of permission shall be granted by the Reserve Bank/ Indian banks to any foreign law firm for the opening of the Liaison Office in India.

 

  • The Hon’ble Supreme Court has while disposing of the case, held that advocates enrolled under the Advocates Act, 1961 “alone” are entitled to practice law in India and that foreign law firms/companies or foreign lawyers cannot practice the profession of law in India.

As such, foreign law firms/companies or foreign lawyers or any other person resident outside India, are not permitted to establish any branch office, project office, liaison office or another place of business in India for the purpose of practicing the legal profession.

In view this all Banks in India are directed not to grant any approval to any branch office, project office, liaison office or other place of business in India under FEMA for the purpose of practicing legal profession in India.

  • Further, the Indian bank shall bring to the notice of the Reserve Bank in case any such violation of the provisions of the Advocates Act comes to their notice.

The action by the central bank of India is also the first time I have seen and it has a far-reaching effect on residency and citizenship by investment practice in India.

Read the Supreme Court of India’s judgment here  | Read RBI Notification here

July 12, 2021
July 12, 2021

Should I hire a Canada, Australia or New Zealand licensed immigration consultant?

Author By Ajmera Law Group Categories Consult Immigration Lawyer, Immigration Consultants, Indian Regulatory Updates

Until 2003, immigration consultants and agents were not regulated in Canada. The Canadian immigration department invited a group of immigration agents and consultants to form a self-regulated organization. Most of the leading agents and consultants in this group were former immigration officers. Only a few of them were lawyers.

To judge their English language proficiency, aspiring immigration consultants were required to take the IELTS examination. A six-month training course, followed by a short examination, was also introduced for these consultants. With this process in place, new immigration consultants were granted a license all over Canada.

However, within a couple of years, the initially formed immigration consultants’ association was dissolved and a new association was formed. https://iccrc-crcic.ca/

As per several Canadian media outlets, the presently operational immigration consultants’ association has failed to rein in widespread immigration fraud in Canada, which was the main objective of forming this regulatory organization. There is a possibility that a new licensing body may be launched by the Government of Canada to regulate immigration consultants practicing Canadian immigration and visa law.

If we look closely at the membership list of licensed Canadian agents and consultants, very few of them are former immigration officers. There are also very few members with a legal background having a sound understanding of Canadian immigration law.

After undertaking to take a short six-month study program and examination, anyone can become a licensed Canadian immigration consultant. This is likely to make most immigration consultants average advisors and not experts in every area of immigration law. Hence one needs to be very careful while choosing the right immigration consultant.

Similar is the case in Australia (https://www.mara.gov.au/) and New Zealand (https://www.iaa.govt.nz/) for licensed immigration consultants and agents.

These licensed consultants who have obtained licenses from Canada, Australia or New Zealand operate offices in India or appoint unregulated agents and practice immigration law in India.

This is in violation of the Indian Advocate Act 1961.

As per this Act and the Supreme Court of India’s judgment, only licensed Indian lawyers and advocates can practice law, including foreign law and immigration and visa law, in India.

Presumably, not being aware of this law, the Australia and New Zealand Immigration Consultants’ Associations have issued licenses to Indian citizens (who are not Indian lawyers) to practice their respective country’s immigration and visa law in India, thereby violating the Indian Advocate Act 1961. They are also in contempt of the Supreme Court of India.

This Indian Advocates Act 1961 and the Supreme Court of India’s 2018 judgment, makes one point very clear – that all Indian immigration consultants, who have not licensed lawyers or advocates in India, and who dispense legal advice on immigration and visa matters (visitor visa, student visa, work permit, permanent or business immigration) of any country to the Indian citizens in India are violating the Indian law.

In the event one is defrauded or cheated by an immigration agent or consultant, the person can file a complaint to their respective regulatory authority against the said consultant/agent. One important aspect to consider is whether the fraud was committed in India or in a foreign country and whether any legal action can be taken against the said immigration consultant/agent.

In such a scenario, the only option available to Indian citizens is filing a police complaint, which may not be very effective and may not give desired results.

So before you hire a licensed immigration consultant/agent, be extremely careful. Check their backgrounds thoroughly and obtain references from them before entrusting your hard-earned money and hopes to them.

Read the Supreme Court of India’s judgment here  | Read RBI Notification here