U.S. Immigration Options for Foreign Investors: Temporary and Permanent

José R. Pérez, Jr., Partner Board Certified Immigration & Nationality Law, Texas Board of Legal Specialization

Houston Association of RealtorsInternational Day

November 19, 2009

Unemployment Rate: Texas Compared to the Rest of the Country

State Current unemployment rate

Increase from last year

Texas 8.0% 60.0%

Nation 10.2% 38%

LARGEST STATES

California 12.2% 60.5%

New York 9.0% 57.8%

Florida 10.7% 64.6%

Pennsylvania 8.6% 56.3%

WORST UNEMPLOYMENT

Michigan 15.2% 76.7%

Nevada 13.2% 88.5%

Oregon 12.2% 87.6%

Rhode Island 12.8% 54.2%

State Current unemployment rate

Increase from last year

BEST UNEMPLOYMENT

No. Dakota 4.3% 30.0%

So. Dakota 4.9% 29.5%

Nebraska 5.0% 51.0%

NEIGHBORING STATES

Oklahoma 6.8% 74.3%

New Mexico 7.5% 74.0%

Arkansas 7.1% 39.2%

Louisiana 7.8% 62.5%

Source: U.S. Census Bureau

The Time to Invest in Texas Real Estate is NOW!

(I knew that you would like this plug)

What is the Goal of Your Client?

• Immigrant v. Non Immigrant • Permanent v. Temporary

I’ve Now Started a New Office in Texas. . .And bought a beautiful house here. . .

• What type of visa do I need so that I can manage the U.S. operations?

(a) L-1A Visa for a New Office

(b) E-1 Treaty Trader Visa for conducting volumes of trade between treaty country and the United States

(c) E-2 Treaty Investor Visa for investing in a business in the United States

L-1 Intra-Company Transferee• Must have worked abroad for parent,

subsidiary, affiliate or branch for one continuous year out of the three years immediately preceding application.

• Maximum time for L-1A Manager or Executive is 7 years.

• Generally, New Offices, those doing business for less than one year in the U.S., must:

– Provide a business plan;

– Provide forecast of operations and finances;

– Describe how the business will support a managerial or executive position within the year.

L-1B Specialized Knowledge Professional

• L-1B Specialized Knowledge Professionals:

– Individuals possess specialized knowledge of the company’s product, service, research, equipment, techniques, management; OR

– An advanced knowledge or expertise in the organization’s processes and procedures.

• Must have worked in a Specialized Knowledge or Managerial capacity abroad for at least one year.

• Maximum time for L-1B Specialized Knowledge Professional is 5 years.

E-1 Treaty Trader and E-2 Treaty Investor Visas

• An appropriate treaty must be in place and between the U.S. and the foreign corporation’s country of origin.

• Substantial Trade (E-1) or Investment (E-2)

• Foreign national employee and the Employer must share the same nationality.

• Job Position – Executives, managers, essential employees or with specialized knowledge.

• No requirement that employee have worked for the Employer previously.

• E-1 or E-2 visas may be issued with validity period of up to 5 years. Initial admission is limited to 2 years and may be extended in 2 year increments.

H-1B Visa – General Requirements(Foreign National Must have Job Offer in U.S.)

• Specialty Occupation – A position which generally requires at least a Bachelor’s Degree or its equivalent.

• Labor Condition Application (LCA) must be filed with the U.S. Department of Labor.

• Six-year limit on period of stay in the United States (some exceptions apply to the 6-year limit).

• H-1B Cap – 65,000 H-1B visa numbers.

• 20,000 additional H-1B visas set aside for beneficiaries with a U.S. Master’s or higher degree from a U.S. university.

• Government Filing Fees: $2,320 - $3,320.

TN Trade NAFTA• Must have job offer in U.S.• Potential Employee must be a Canadian

or Mexican citizen.

• Position must be classified as one of the 60+ professional occupation categories enumerated in NAFTA treaty. Most positions require a Bachelor’s degree.

• Time Period in U.S. – 3 year increments.

• Engineering positions qualify for TN visas.

• The candidate must have a Bachelors Degree, Licenciatura Degree, or a state or provincial license.

Time Frames & Procedures• Procedures:

– Most types of visa processes require:

• Petition with U.S. Citizenship & Immigration Services, and

• Visa Application at the appropriate U.S. Consulate abroad.

• Visa Application procedures vary from Consulate to Consulate.

• Time Frames:

– Most nonimmigrant petitions take 2-4 months for CIS adjudication.

– Most visa applications normally take from 1-3 weeks.

Immigrant Visas

Visa Bulletin November 2009Family Based

Preference All Chargeability Areas Except Those Listed

CHINA - Mainland Born

INDIA MEXICO PHILLIPINES

1st 15OCT03 15OCT03 15OCT03 08JUL92 22OCT93

2A C 01APR05 22JAN05 C C

2B 01JUN02 01JUN02 22APR01 01JUN02 01JUN02

3rd C C C C C

4th C C C C C

Visa Bulletin November 2009Employment Based

Preference All Chargeability Areas Except Those Listed

CHINA - Mainland Born

INDIA MEXICO PHILLIPINES

1st C C C C C

2nd C 01APR05 22JAN05 C C

3rd 01JUN02 01JUN02 22APR01 01JUN02 01JUN02

Other Workers 01JUNE01 01JUN01 22APR01 01JUN01 01JUN01

4th C C C C C

Certain Religious Workers

U U U U U

5th C C C C C

Targeted Employment Areas/ Regional Centers

C C C C C

Use and Potential of EB-5 Program

• The EB-5 program has been under-utilized.

• 10,000 EB-5 Green Cards are available each year.

• Less than 1,500 EB-5 Green Cards are used each year.

• Despite chronic under-use, by 2003 more than $1 Billion had been invested in America over the course of the EB-5 Employment Creation Visa Program.

• (See House Report on Extension of the EB-5 Regional Center Pilot Program, June 5, 2008, citing a General Accounting Office report).

• Overall, the EB-5 program can produce up to $10 Billion in foreign investment into the US each year.

Immigrant Investor Visas

• Regular Investor - $1,000,000

• Targeted Areas - $500,000 – high unemployment – 15%

• Rural Areas - $500,000– Less than 20,000 inhabitants

• Pilot Program – Regional Center designated by USCIS– Sunsets on October 31, 2012

Requirements:• Must be legal funds of investor• Must be a new commercial enterprise or expand an

existing business by at least 40% or save a troubled business that had lost at least 20% of its value during the 12-24 months before the application

• Each investor must save and/or create at least 10 full-time jobs.

• Must have invested or is actively in the process of investing the capital to put capital at risk.

• Must have an active voice in management of the business.

• Business must benefit the economy.

Sample Businesses for Regional Centers

• Construction manufacturing plants or logistics facilities.• Construction or renovation of other businesses, such as:

– retail shopping centers – commercial real estate spaces – restaurants– hotels– entertainment/sports venues.

• Promotion of business parks and similar projects.• Infrastructure construction projects.

Examples of Regional Centers

• Examples :  

– The State of Vermont regional center covering the entire territory of the State. Current projects include the expansion of 2 ski and golf resorts.

– The Philadelphia Industrial Development Corporation’s Regional Center project to promote redevelopment of the old Navy Yard properties in South Philadelphia.

– California Military Base Regional Center that pools investment funds to refurbish closed military bases in California. The Regional Center loans money to local California development entities. These funds are then used to construct needed infrastructure.

• Regional Centers frequently operate successfully in cooperation with City, County or State governments.

Benefits of a Regional Center

• Regional Centers have been successful at attracting foreign investment at a low cost and creating jobs.

• The foreign citizen invests in a pre-existing business project, organized as a pooled investment, which spreads risk.

• Investors get the benefit of the Regional Center’s management, without having to daily manage their own investment.  

• Regional Centers conduct extensive pre-screening of foreign investors to ensure clear source of funds.

• Foreign investors bear the costs of managing the Regional Center. For example, investors pay up-front fees of $25,000 to $50,000 in addition to the $500,000 investment.

Application Process for Establishing a Regional Center

The application to USCIS must address the following key issues:1. Geographical boundaries. 2. Organizational structure.

– E.g., for-profit LLC. – E.g., for-profit limited partnership: General Partner operates and

manages the investment, and foreign investors acquire interests of the Limited Partner.

3. Business Plan of investment projects.4. Source of start-up capital and the amount available.5. Marketing plan.6. Economic analysis of job creation (direct and indirect).

– Uses economic projections relying on statistically valid economic forecasting data according to strict USCIS guidelines.

– Projections describe how many jobs each $ invested will create.

Q & A

Email: jperez@fosterquan.comPhone: 713.625.9231

Houston, San Antonio, Austin, Rio Grande Valley, Mexico City, Washington D.C.

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