EB-5 & Other Investor News from the Alliance of Business Immigration Lawyers Vol 2, No. 4 • October 01, 2012

Headlines:

1. President Signs Extension of EB-5 Regional Center Program for Three Years – The law extends the EB-5 Regional Center Pilot Program for three years, until September 30, 2015.

2. USCIS Comments on Issues During October EB-5 Stakeholders Meeting – Among other things, USCIS confirmed that it is reviewing some regional center activities with respect to various compliance issues in collaboration with the Securities and Exchange Commission and other regulatory agencies.3. Visa Office Predicts Possible Retrogression of EB-5 Numbers for China in Second Half of FY 2012 – Of the 7,641 visas issued in fiscal year 2012, 80 percent went to China.4. OFAC Eases Fund Transfers from Iran, Makes Other Changes to Regs – Among other things, OFAC amended the General License so that pending E-2 or EB-5 applications are considered approved, and specific licenses are not required to transfer related funds from Iran.5. New Publications and Items of Interest – New Publications and Items of Interest6. Member News – Member News7. EB-5 Government Agency Links – EB-5 Government Agency Links

Details:

1. President Signs Extension of EB-5 Regional Center Program for Three Years

President Barack Obama signed into law S. 3245 on September 28, 2012. Among other things, the law extends the EB-5 Regional Center Pilot Program for three years, until September 30, 2015. Congress passed the law with no senators objecting to the extension and only three representatives voting against it.

S. 3245 also extended three other immigration programs for three years.

The White House’s Statement Announcing the Signing

S. 3245

2. USCIS Comments on Issues During October EB-5 Stakeholders Meeting

U.S. Citizenship and Immigration Services (USCIS) held an EB-5 stakeholders meeting in Washington, DC, on October 16, 2012. Among other things, USCIS confirmed that it is reviewing some regional center activities with respect to various compliance issues in collaboration with the Securities and Exchange Commission (SEC) and other regulatory agencies. USCIS noted that some projects may require registration under federal or state securities laws. Some projects may need registered broker-dealers or must register under the Investment Company Act of 1940. USCIS said it is working with the SEC at a programmatic level and on a case-by-case basis.

As with the previous call, USCIS again did not discuss the tenant-occupancy methodology issue in detail on the call. USCIS said it plans to release separate guidance on that issue. The agency also noted that its staff continue to work on the anticipated draft EB-5 memorandum to incorporate suggestions and make it as comprehensive as possible, and that a “conversation” with Director Alejandro Mayorkas would happen soon and a new version of the draft memo would be released afterwards for comments.

With respect to bridge loans, USCIS said there is no bright-line rule and noted that the statute requires a nexus of investment and job creation. The agency wants to see contemplation of EB-5 money to retire the domestic money as part of original loan documents; just refinancing domestic money won’t work.

Noting a surge in EB-5 filings and an ensuing backlog, USCIS said receipts have quintupled over the last few years and that the agency is stepping up resources to deal with the increase.

USCIS had not yet posted its latest EB-5 statistics as of press time.
USCIS approved 243 EB-5 regional centers as of the fourth quarter.

Full List of Regional Centers by State

3. Visa Office Predicts Possible Retrogression of EB-5 Numbers for China in Second Half of FY 2012

Charles Oppenheim, Chief, Visa Control and Reporting at the Department of State’s Visa Office, spoke at the Invest in the USA (IIUSA) EB-5 conference held on October 15-16, 2012, in Washington, DC. Among other things, he noted that 7,641 EB-5 visas were issued in fiscal year 2012, a record high. Of that total, 80 percent went to EB-5 investors from China. EB-5 visa numbers may be just as high in FY 2013, he said, adding that EB-5 numbers for China in the second half of FY 2012 may need to be retrogressed because of country cap limits.

4. OFAC Eases Fund Transfers from Iran, Makes Other Changes to Regs

The Department of the Treasury’s Office of Foreign Assets Control (OFAC) published a final rule in the Federal Register on October 22, 2012, amending its Iranian Transaction Regulations, including changing the name to the Iranian Transactions and Sanctions Regulations. The final rule includes new sections on prohibitions, definitions, interpretations, and licensing provisions.

Among other things, OFAC amended the General License so that pending E-2 or EB-5 applications are considered approved, and specific licenses are not required to transfer related funds from Iran. For such applications, OFAC will issue a Return Without Action letter that administratively closes out the application and references the amended General License. Those receiving funds should still check watch lists to ensure that the funds are not from banned entities.

OFAC also established a “favorable licensing regime” for licensing applications submitted by U.S. persons to engage in certain human rights, humanitarian, and democracy-related activities with respect to Iran.

Announcement

Final Rule

5. New Publications and Items of Interest

Visa Office report. The Department of State’s Visa Office has published the Report of the Visa Office 2011. The report includes a table detailing employment-based visas and status adjustments by country and type of investment.

Immigrant entrepreneurship stalls. A new Kauffmann Foundation study shows that immigrant entrepreneurship has stalled for the first time in decades. “Then and Now: America’s New Immigrant Entrepreneurs” shows that the proportion of immigrant-founded companies nationwide has slipped from 25.3 percent to 24.3 percent since 2005. The drop is even more pronounced in Silicon Valley, where the percentage of immigrant-founded startups declined from 52.4 percent to 43.9 percent. Also, a new book based on the findings warns of potential consequences for the U.S. economy and urges swift action to reverse the trend. “The Immigrant Exodus: Why America Is Losing the Global Race To Capture Entrepreneurial Talent” draws on research to show that the United States is in the midst of a historically unprecedented halt in high-growth, immigrant-founded startups.

Several ABIL members co-authored and edited the new publication, Global Business Immigration Practice Guide, recently released by LexisNexis. The Practice Guide is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.

This comprehensive guide is designed to be used by:

Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
Attorneys interested in expanding their practice to include global business immigration services.

This publication provides:

An overview of the immigration law requirements and procedures for over 20 countries;
Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
A general overview of the appropriate options for a particular employee; and
Information on how an employee can obtain and maintain authorization to work in a target country.

Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issue.

ORDER HERE. International customers who do not want to order through the bookstore can order through Nicole Hahn at (518) 487-3004 or Nicole.hahn@lexisnexis.com.

Green Card Stories. The immigration debate is boiling over. Americans are losing the ability to understand and talk to one another about immigration. We must find a way to connect on a human level. Green Card Stories does just that. The book depicts 50 recent immigrants with permanent residence or citizenship in dramatic narratives, accompanied by artistic photos. If the book’s profilees share a common trait, it’s a mixture of talent and steely determination. Each of them overcame great challenges to come and stay in America. Green Card Stories reminds Americans of who we are: a nation of immigrants, from all walks of life and all corners of the earth, who have fueled America’s success. It tells the true story of our nation: E pluribus unum–out of many, one.

Green Card Stories has won five national awards. It was named a Nautilus book award silver medal winner, and won a silver medal in the Independent Book Publishers Association’s Benjamin Franklin Award in the multicultural category. The book also won a Bronze Medal in the Independent Publisher’s “IPPY” Awards and an honorable mention for the 2012 Eric Hoffer Book Award. Ariana Lindquist, the photographer, won a first-place award in the National Press Photographers Association’s Best of Photojournalism 2012. Green Card Stories is also featured on National Public Radio’s photo blog.

For more information or to order, visit Green Card Stories.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available HERE.

6. Member News

Rami Fakhoury, Robert Loughran, and Julie Pearl spoke at the Forum for Expatriate Management National Conference in Las Vegas on Thursday, September 13, 2012, on global immigration issues. Mr. Fakhoury spoke on India, Mr. Loughran spoke on Latin America with a focus on Brazil and Mexico, and Ms. Pearl spoke on the United Kingdom and the new European Union “Blue Card.”

Bernard Wolfsdorf, and Stephen Yale-Loehr will speak at PLI’s 45th Annual Immigration & Naturalization Institute on November 19-20, 2012, in New York on EB-5 issues.

Angelo Paparelli has published a blog entry related to EB-5 issues. “The EB-5 Investor Immigration Program: Green Shoots or Chutes and Ladders?”

Stephen Yale-Loehr and H. Ronald Klasko spoke at the IIUSA conference on October 15-16, 2012, in Washington, DC. Mr. Yale-Loehr moderated a panel on EB-5 legislative issues, and Mr. Klasko spoke on a panel about what to expect at the USCIS EB-5 stakeholders meeting.