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Category Archives: US Immigration attorney

September 27, 2022

Are you a student going to USA in 2022 for study with the hope of eventually obtaining a green card? Congratulations on getting admitted to a US university!! But the bad news is you may have to wait for 100 years to get a green card if you plan to settle down in USA after your studies. Read our blog to know more.

Thousands of students start their academic and professional journey in USA and wait in line for a number of years for their green card. Indian citizens living in USA for more than 10 years have not yet received their green card due to the limited employment-based quota. If you are going to USA in 2022, you may have to wait for almost 100 years to obtain a Green Card. Based on our communication with our associate US immigration lawyer, we would like to explain why this is happening.

October 2022 Visa Bulletin

The Dates of Filing Chart from the October 2022 Visa Bulletin show that EB2 India will retrogress well over 2 years to May 1, 2012. This means Indian citizens with advanced degrees, sponsored by their employers and living in USA for more than 10 years, are still in line for receiving their green cards.

The unfortunate part is people sponsored for EB2 India green cards in 2022 will have to wait for 100 years to obtain their green card! This means all EB2 Indian professionals may not even be alive when they get a green card. They will have to keep extending their H1-B visas every 3 years until they retire or until the government refuses to renew the visa. After which they will have to return to India.

One may question why this has come to pass. The main reason behind this situation is the outdated immigration laws. The number of employment-based green cards available to professionals with advanced degrees is only 28.6% of the 140,000. Additionally, the country limits EB2 green cards for people born in the country to only 7% of the total. As a result, the number of Indian professionals with advance-degrees who are obtaining green cards has drastically reduced.

Furthermore, not all countries have limits on EB1, EB2 and EB3 green cards. Thus, unused green cards are offered to some Indians waiting in line for years. 

Current situation of EB2 India

Currently, 140,000 people are waiting for their green cards, and 80% of them are Indian citizens. Considering the fact that US employers are dependent upon highly-educated Indians, one wonders why a quota of EB2 India immigrants is limited to 7% of the total number of immigrants?

Except immigrants from India and China, no other nationalities are waiting in queue to obtain a green card. It seems like citizens of India and China are being penalised due to the county of their birth.

Additionally, immigrant families are facing another hurdle. Children born abroad, after turning 21, are not allowed in USA. They are not even permitted to stay in line as dependents for a green card. Many such children become undocumented and are forced to go back to their home country after turning 21.

Is there a solution?

As discussed above, it can clearly be seen that US immigration laws are antiquated and require reform. If reforms don’t come soon, highly educated Indians will get demotivated about going to USA. Sensing the need of the hour, Senator Rand Paul, an American physician and politician serving as junior U.S. senator, has introduced the Backlog Elimination, Legal Immigration, and Employment Visa Enhancement (BELIEVE) Act.

This Act aims to end the limits placed on green cards for employment-based immigrants. It also proposes to increase the number of green cards for EB2 immigrants from 140,000 to 270,000. Additionally, entire families – spouses and minor children – will be included in the quota.

It doesn’t end here. The BELIEVE Act will eliminate the EB2 and EB3 India green card waiting times. The Act creates a levelled playing field for employment-based immigrants who must play by the rules and help the county by boosting the US economy.

To summarise, many highly educated Indian citizens waiting for green cards in USA may finally see a ray of hope in form of the BELIEVE Act.

July 25, 2022

Understanding Investing in EB-5  and different financial structures?

The pathway to USA Green Card by investment, also popularly known as the EB-5 investment visa program, is considered the easiest and safest way to obtain a Green Card. The law behind the EB-5 investor program is very simple but the creative financial structures set up by investors and related professionals make investing in EB-5 look like a very complex process.

The simple EB-5 law

  1. An EB-5 investor may make an investment of US$ 800,000 in a new commercial enterprise / new business which will create 10 new jobs provided the business is located in a rural area or high unemployment area or the project is an infrastructure project. In all other cases, the investment amount shall be US$ 1,050,000.
  2. The investment should be a business risk.
  3. The investment amount should come from a legitimate source, including earned money or a loan, or a gift.

This simple EB-5 regulation has been converted into complex financial structures, making the investment process seem very complicated for investors.

Here are the direct and indirect EB-5 investment scenarios:

Direct Investment

An investor can start on his own or partner with someone in the USA for a new business located anywhere in the USA, make an investment of US$ 1,050,000 and create 10 jobs. The investor will then qualify for a visa under the EB5 program. If this business is located in a rural area or high unemployment area, the investment amount will be US$ 800,000.

Investors who are capable of operating and managing a business may opt for this type of direct investment.

Indirect investment

In this case, several geographical areas in the USA may be combined and approval from USCIS is obtained to declare the area as a Regional Centre.

It is under this type of indirect investment, various financial structures are offered to investors for making an investment.

Here are some simple examples:

EB-5 Equity investments

A developer in the USA approaches USCIS to receive permission to declare a certain geographical area of the USA as a regional center. The developer then starts his project in this area and uses the EB-5 program to raise funds. The project will also be financed by a bank loan and the developer’s equity in the regional center as well.

In this type of project, the developer invites investors to make an investment as equity or as preferred equity partners.

Very few developers in the USA use this model. In such cases, there is one project and one developer.

EB-5 Debt model 

A company raising funds for a business or project in the USA may approach USCIS to receive permission to declare a certain geographical area of the USA as a regional center.

Once the area is declared a regional center, the company may approach developers or businesses to set up a project there.

Rather than making a direct investment in the project company, in this case, a second company is created in which EB-5 investors make an investment as equity partners. This company then gives a loan to the project company to carry forward the project. Hence this is known as the Debt model.

This is the most popular model for EB-5 investment.

It is interesting to note that US companies assisting to raise funds for US developers or businesses also undertake marketing for EB-5 projects outside of the USA to attract EB-5 investors.

In this case, too there is one project and one developer but there is also an intermediary company, such as a fundraising company and/or EB-5 marketing company.

EB-5 Fund / Mutual Fund model

A company raising funds for a business or project in the USA may approach USCIS to receive permission to declare a certain geographical area of the USA as a regional center or the company may rent a regional center from another company who has already received approval from USCIS for a regional center.

Once the area is declared a regional center, the company may approach several developers or businesses to set up a project there.

The EB-5 fund may be created for just one project or business or several projects or businesses in a regional center.

Using EB-5 funds for several projects reduces the risk by diversifying the portfolio as in the case of regular mutual funds in financial markets.

This model is used by very few companies in the USA.

To protect EB-5 investors, the US government has introduced the new EB-5 Reform and Integrity Act. Thanks to this new regulation, we may see a major shift in the EB-5 marketplace. Many companies marketing EB-5 projects or raising funds or renting regional centers may face financial viability issues due to a long list of compliance requirements.

Depending on your personal aptitude, investors may decide to invest in EB-5 to receive a USA green card.

Legal disclaimer:

This blog is written in a very simplified manner for the purpose of making investors understand the various models related to EB-5 investment. Investors are advised to consult a qualified US immigration lawyer before making any decision regarding an EB-5 investment.

For Indian investors – Investing in an EB-5 visa from India is a legal matter and as per Indian law, only Indian lawyers having expertise in the EB-5 program must be consulted. 

June 21, 2022

The EB-5 visa category is an easy and straight forward option to obtain a Green Card through investment in the United States. The program is designed for foreign nationals who desire to immigrate to the US and start a business or invest in an existing business that contributes to the US economy.

On 15th March, 2022, the US government launched the new EB-5 Reform and Integrity Act 2022.

As a one of the leading Immigration lawyer in India, we have highlighted some of the important new provisions in this new Act.

Reasons for updating the existing Act:

  1.  Preventing frauds
  2. Promoting and reforming foreign capital investment
  3. Creating jobs in American Communities

The Act lists new compliance requirements that have to be adhered to by the following entities:

  1. Regional centers
  2. New commercial enterprises
  3. Job creation entities
  4. Direct and third-party promoters
  5. Migration agents
  6. Companies and professionals involved with regional centers

Salient differences between the old and new Act and regulations:

Job creation

Earlier, each investor had to create 10 jobs irrespective of whether they were direct or indirect jobs. As per the new Act, each investor has to create at least 10 jobs of which 90% can be indirect jobs. If the construction work lasts for less than 2 years, only 75% of the jobs are accepted as indirect.

Regional Centre (RC) approval

As per the old Act, RC approval by the state government was mandatory but not by USCIS. However, the new Act stipulates that RCs will now require mandatory approval by the USCIS (United States Citizenship and Immigration Services). As an associate of US Immigration attorney in India, our law firm can assist in obtaining RC approval for our clients.

EB-5 business plan

In the old Act, it was left up to the discretion of regional centers whether they wanted to get approval of their business plan before filing an EB-5 petition. Now, investors can file for EB-5 petition only after receiving approval of their RC’s business plan. As an associate of US Immigration lawyer in India, our law firm can assist in obtaining business plan approval for our clients.

Failure to comply with the Act and regulations

Earlier, USCIS could not take any action in case any RC failed to comply with the Act and its regulations. Now, USCIS can suspend or terminate the RC in case of non-compliance.

Investment

Investors had to invest US$ 500,000 and $1,000,000 under the old Act that was effective before 15th March, 2022. Now, investors must invest US$ 800,000 and $1,050,000 to file an EB-5 petition.

 

Additionally, the US Government has come up with some new regulations in the EB-5 Reform and Integrity Act 2022. They are as listed below:

RC record keeping and audit

USCIS shall conduct an audit of the RC every five years. Hence, RCs have to maintain records for five years.

RC’s annual statement

All regional centers have to maintain and share the annual statement with the investors. If they do not follow the requirement, USCIS can demand a minimum penalty of 10% of the total amount invested.

Annual fees by RCs

If the number of investors is less than 20, RCs have to pay annual fees of US$ 10,000 to the USCIS. If the number of investors is more than 20, RCs must pay annual fees of US$ 20,000.

Petition fees by RCs

RCs must contribute US$ 1,000 per petition to create funds so that they can recover the costs of adjudication and naturalization.

Administration of investment amount by investors

The US government has added a specific provision for an escrow account. The RC must have a 3rd party fund administrator, such as a USA licensed lawyer, CPA or broker/dealer to administer the EB-5 investors’ funds.

Marketing and Migration agents:

All marketing and migration agents appointed by the RC must be registered with the USCIS.

Conclusion:

To stop frequent frauds and create jobs for American communities the US Government launched the EB-5 Reform and Integrity Act 2022 with more stringent and well-defined regulations. For more information, please contact our law firm.

June 16, 2022

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