Tag Archives: visas

Is Citizenship By Investment The Answer To Our Woes?

Congress created the EB-5 Immigrant Investor Program in1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. 

You may have heard  that the EB-5, as a faster option to a Green Card, accelerated US permanent residency. Foreign students, who have forked out thousands of dollars on their US education, enquire about it as their ticket to stay on in the US.  In the post COVID-19 world, immigrant workers, faced with the threat of unemployment, may well have their eye on it. Promoters of the EB-5 program routinely target H-1B workers in their recruitment efforts.

Is the Immigration Investor Visa Program also known as the EB-5 visa an efficient track to citizenship?

EB-5, one of five employment-based (EB) visas, is not banned under President Trump’s proclamation limiting immigration into the United States. The EB-5 program allots green cards to foreign investors in exchange for their investments.

An undertaking to create at least 10 American jobs and invest $1.8 million individually into a business makes you eligible to apply. However, in case you don’t want to manage the business you don’t have to.

Eligible investors must finance $900,000 in an approved commercial real estate project in a targeted employment area (TEA) and demonstrate, through economic analysis, that the resulting economic development will create jobs. An area is declared a targeted employment area (TEA), by the central government based on its rural nature or lower levels of employment. Regional centers (RC) connect foreign investors with commercial real estate developers in need of funding.  These  projects result in jobs through construction work at first and eventually in the service industry, for example in hotels, restaurants, resorts and stadium development.

Once the money has been received by the US business entity you have promised to invest in, you are on your way to applying for a green card. Two years after the receipt of the conditional green card, proof of employment creation has to be produced. Given the present wait times, it will take 7 or more years for the visa to come through if the country of your birth is India.

The number of EB-5 visas allotted to Indians rose as more people got to know of the visa and applications went up. In 2019 more than 705 visas were allotted to people born in India. 

Annually, 10,000 EB-5 visas are issued, with a 7% per country cap (700 per country). For 2020, the Department of State has allocated 11,111 visas to EB-5 in FY2020, of which any one country can get up to 778 visas (7%) under the country caps.

Due to a rush in applications last year, 2020 also has an unusually long list of applicants. In November 2019 the investment amounts were increased from $1 million to $1.8 million and from $500,000 to $900,000. As word spread people rushed to get their applications in before the increase kicked in, as further delaying  wait times.

Barron’s reported that the program generated around $5 billion a year for 10,000 visas. For the EB-5 visa aspirants the more attractive EB-5 offerings have offered less than 1% per annum as a rate of return on capital invested by them, say Shai Zamanian and Dina Golfaridan, of The American Legal Center of Dubai.

Thirty four percent of those who received EB-5 visas in FY19 were already living in the U.S. They maintained their status in the US on another visa category and then petitioned to adjust status. The majority of EB-5 visas (42%) went to children.   

The practitioners of EB-5 visa are a bit disappointed with the present state of the program. Long waits in the application process, high initial investments, and limited TEA areas dull the shine of this road to residency. 

“EB-5 visa has a lot of challenges in addition to the COVID-19 situation. Major problem it faces is the long wait times and high minimum application investment amounts of 900,000 to 1.8 million,” says Suzanne Lazicki, a business plan writer for EB-5 applicants and EB-5 expert.

Additionally, as per her analysis of the EB-5 marketplace, processing of the applications has been slower. From 5000 processed in 2018, the number has dropped to below 1000 in 2019.  

“Limited number of areas qualify for the TEA designation. A smaller percentage of people can therefore use the program,” says Suzanne. 

On the plus side,” she says,” it is exempted from restrictions in the executive order.  To see the steps involved in applying for the visa click here.

Shai Zamanian and Dina Golfaridan of The American Legal Center of Dubai contend that during the Great Recession the EB-5 program provided an alternative source of funding and job creation for the US economy. They make the argument to enhance the EB-5 program as an answer to COVID-19 woes. With 22 million Americans filing for unemployment as of April 2020 and the urgent need for investment, they argue that boosting the program as a stimulus tool could  stave off the effects of COVID-19. Revised EB-5 program, with lower requisite investment amounts, would make it a successful financial tool in alleviating the current financial downturn and its aftermath they say.

 

Can the Public Charge Rule Deny Your Green Card?

A recent Politico survey shows that 80% of Indians who applied for green cards were initially denied by a new Public Charge rule, but were able to reverse the decision and get approval. 

In a national telebriefing Jeanne Batalova from the Migration Policy Institute said 69% of recent green card applications were initially denied because applicants used a public benefit (long-term care benefits or cash assistance), and because cases reviewed at embassies and consulates face stricter guidelines enforced by the Department of State.

But, said Batalova, in 2016, out of 1000 applications that were denied by US consulates abroad, over half were able to reverse decisions and get approved. She suggested that families going through the process abroad should consult experts to create a strategy appropriate to their families.

The new Public Charge rule, introduced by the Trump administration in 2018, was expected to go into effect on October 15. However, In October, five federal courts in New York, Washington & Maryland, temporarily blocked changes that would allow the Dept. of Homeland Security (DHS) to deny green cards and permanent resident visas to immigrants who use Medicaid, food stamps and other government benefits.

Despite court  injunctions temporarily blocking the new rule, confusion about regulations and  anti-immigrant rhetoric has triggered widespread fear among low-income immigrant families who think their receipt of benefits could harm their current or future immigration status. 

“Much of the damage is already done,” said Mayra Alvarez of the Children’s Partnership (LA), with families declining to enroll in Medicaid, SNAP or other public programs they are entitled to. The Kaiser Family Foundation reported declining enrollment in Medicaid coverage, and a Children’s Partnership survey reported increased anxiety among children about  going to school or the park.

Who Is Affected by the Public Charge Rule?

A Public Charge determination applies only if non-immigrant visa applicants or permanent residence seekers have received public benefits like nursing care facility or hospitalization, or general cash assistance like SSI or TANF, said Allison Davenport, an attorney with the Immigrant Legal Resource Center (ILRC).

New criteria added to the list now includes Section 8 Housing, subsidized housing, and food stamps (SNAP) and some forms of  Medicaid.

The DHS will evaluate other factors like age, health, health insurance, job history, education, English skills to determine if an individual could become a public burden, so applicants will need proof of private insurance or make 200 percent of the Federal poverty guidelines.

Those at risk of being denied are persons who have no private health insurance, or who have received 12 months of public benefits listed in the new rule in the 36 months prior to filing their application.

The ILRC co-sponsored a national telebriefing with the National Immigration Law Center and Ethnic Media Services on October 17,  to explain who is affected and how immigrant communities can fight back.

Most Immigrants Are Not Affected

Most undocumented immigrants will not be affected because they are not eligible for these public benefits, said Davenport. They include refugees, asylees, U visa crime victims, T visas human trafficking survivors, and VAWA family violence victims. Special immigrant juveniles ( abused, abandoned and neglected minors) and some people renewing certain forms of temporary protection (DACA, TPS) are also protected. The new regulations also exempt:

Pushback Against Public Charge

More than a quarter million people spoke out against the Public Charge after it was published in Oct 2018, setting a record for the most comments ever submitted to the DHS on any proposed rule.  

Madison Allen, an analyst at the Center for Law and Social Policy, said that respondents shared research, evidence and powerful stories on how the proposal could potentially harm the health, wellbeing and economies of communities across the country, while members of Congress commented that it was inappropriate for the DHS to override Congressional intent.

A Policy of Exclusion in Search of a Justification

These public comments laid the groundwork for litigation and were central to the nationwide preliminary injunctions the courts issued to block the Public Charge anywhere in the U.S. Judges also mentioned the failure of the administration to take comments into account, the “extreme overreach” of the proposal and its apparent violation of congressional intent. 

Judge George Daniels of the Southern District of New York called the rule “A policy of exclusion in search of a justification.” 

What People Should Do

Alvarez urged families to stay enrolled in their benefits as changes cannot move forward while preliminary injunctions are in place. They should consult immigration attorneys and local non-profits for legal advice on how the new rule will affect their particular case.

The 1999 policy guidelines that remain in effect make it clear that housing, health and nutrition programs cannot be considered in the Public Charge determination, and, it will take months before another interim court rules on the case as it winds its way to the Supreme Court.

A directory of resources is available at  www.immigrantadvocates,org/legal 

Meera Kymal is a Contributing Editor at India Currents

 

 

 

Ask a Lawyer – When Aging Parents Need Help With Legal Affairs

If you immigrated to America and have aging parents in India, you are facing a common dilemma – how to help parents who are increasingly unable to manage their own affairs. These complicated situations could happen unexpectedly, so be prepared in advance to face questions like these:

How do I manage the property or assets of an elderly parent impaired by illness, typically, stroke or dementia?

How do I arrange funds for healthcare? I find it difficult to transfer money between India and the U.S.

What do I do about making critical healthcare decisions like putting my parents on a ventilator or proceeding with surgery ?

What You Need to Do in India

Create a Joint Account

  •  Ensure that all bank accounts and other property holdings of your parents are joint, with the ability to sign in a “either or survivor” capacity. This also applies to safety deposit boxes. 
  • Frequently, these are held jointly by two parents to begin with, and then become singly-held upon one of them passing. It is helpful to have an additional holder who is fully functional at all times.

Establish Nominees and Power of Attorney

  • Appoint a nominee for each account, so that someone can access the accounts if the main account holder passes away.
  • Prepare a power of attorney and if possible submit it with the bank. This will allow the person with the power of attorney to operate the accounts, investments or safety deposit boxes.
  • Check with the bank to find out if they accept a power of attorney for the account in question what language needs to be used.
  • Ensure that there is a general power of attorney allowing someone to handle the parent’s affairs, including matters relating to real estate (which may require specific power of attorney – please check with a lawyer).  This way, sales of houses and other property are easier to manage.
  • Banks in India have their own rules and restrictions about who can be a signatory, or nominee or a power of attorney holder on an account, so consult with senior bankers or finance planners.

Prepare a ‘Valid’ Will and a Living Will

  • Make sure that there is a valid will which clarifies the property division. Also, investigate the possibility of having a “living will” which specifies the person’s wishes in terms of their health care.

Keep Visas Current

  • Ensure that the parent living in India has a valid visa to travel to the United States should the need arise.  
  • More importantly, make sure that you, a US resident, who might have to travel to India suddenly, have a valid visa at all times. 
  • If you have recently obtained US citizenship, please apply for an Indian visa on an expedited basis.

Access to Cash Flow

  • Ensure that there is access to cash flow, since Indian hospitals often need significant advance payments. 
  • Check with your banks here in the US and in India about money transfers and ensure you have processes in place should the need arise. 

Tax Implications

  • There may be tax implications in the US with having your name on bank accounts or other investments in India. You may be required to file tax returns in India. Please talk to a tax advisor or accountant in both places.
  • It’s good practice to consult with a lawyer, especially with respect to estate planning and wills.
  • In certain circumstances, it may make sense to get advice from estate planning experts, both in India and in the US. Tax considerations and implications on cross border assets can be complex and extensive.

 

What You Need to Do in the U.S.

Bank Accounts

  •  Ensure that there are multiple signatories on bank accounts, investments accounts, safety deposit boxes etc. who can sign individually (not jointly). 
  •  If, for any reason, this is not possible, provide a power of attorney to a trustworthy person, who can operate accounts and manage assets should the person become incapacitated.

Prepare the following Wills and Establish Power of Attorney

  • A will (which provides for a division of assets upon passing) 
  • A living will, which specifies who is in charge of medical care and decision making should the patient be incapable of making decisions and also provides guidance on the patient’s care preferences, such as the extent to which life support can be used 
  • Seek advice from asset planning professionals, accountants and attorneys, both, for the parent as well as the child/caregiver. The will and other documents may need to be structured in very specific ways.
  • Power of attorney, which provides power to another person to manage the affairs even within their lifetime, should they become incapacitated).  
  • File the power of attorney with a bank so that there are no complications at the time of usage.  

Tax Implications

  • There are several tax disclosure and payment requirements in the US. The US taxes its residents on their worldwide income and needs declarations of their assets worldwide. Please take this into consideration and consult a tax professional for advice.

 

This article is intended for informational purposes only. Individual circumstances differ for everyone. It is always advisable to get professional advice specifically suited to your circumstances.

Svati Kania Shashank is a lawyer practicing in New York for over 20 years. 

Edited by India Currents Contributing Editor, Meera Kymal