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At Risk, Debt Arrangement, Guaranteed Redemption: Important Distinctions

7/9/2018

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By: H. Ronald Klasko, Partner of William A. Stock, ABIL Lawyer
Klasko Immigration Law Partners, LLP

We have been counsel in various successful litigations where USCIS had challenged EB-5 petitions either based on an investment not being “at risk,” or based on the allegation that the investment was a “debt arrangement”, or based on a “guaranteed redemption”, or some combination of the three. Often USCIS uses the terms interchangeably as if they all relate to the same concept. They do not.

The purpose of this blog is to distinguish between the three concepts, distinguish between various scenarios in which these issues are raised and distinguish between USCIS policy and our view of the law, which we advocate both to USCIS and in federal court.

DISTINGUISHING BETWEEN THREE CONCEPTS

As mentioned, “at risk”, “debt arrangement” and “guaranteed redemption” are three separate issues. The first issue is whether the investment is a qualifying equity investment or instead a “contribution of capital in exchange for a debt arrangement” 8 CFR 204.6(e) defines whether the contribution of capital qualifies as an investment. If the investment is in return for a debt arrangement, there is no investment; and no other issue needs to be explored. Although USCIS has no standards for what constitutes a debt arrangement, such standards do exist both in tax law and in accounting principles (see below).

If the investment is an equity investment and not a debt arrangement, the next issue is whether the equity investment is “at risk”. This requirement does not exist in the statute but does exist in the I-526 regulations at 8 CFR 204.6(j)(2). Although not defined in any regulation, “at risk” has been defined in Matter of Izummi to require a chance of gain and a risk of loss.

The prohibition against a “guaranteed redemption” does not exist in either the statute or regulations, but rather is found in Matter of Izummi. The prohibition against a guaranteed redemption prohibits an unconditional promise to repay the investor at a fixed price and a fixed maturity date.

When responding to an RFE or an NOID, or when litigating a case in federal court, the first step is to determine which of these legal requirements are the source of USCIS’s concern.

DISTINGUISHING BETWEEN THE RELATIONSHIP BETWEEN THE INVESTOR AND THE NCE AND THE RELATIONSHIP BEWTEEN THE NCE AND THE JCE

The investor must make an equity investment in the new commercial enterprise (NCE), which is “at risk”. Since the investor is investing in the NCE, the issue of guaranteed redemption relates to the redemption by the NCE (the investment entity) of the investor’s interest. It does not relate to the relationship between the NCE and the job creating entity (JCE). A JCE is permitted to guarantee repayment of its loan from the NCE, and USCIS has stated that a third party can also guarantee the JCE’s payment of the loan to the NCE (without violation).

DISTINGUISHING WHETHER A GUARANTEED REPAYMENT IS AT THE OPTION OF THE INVESTOR OR THE INVESTMENT ENTITY

When the investment entity has an option to buy back an investor’s investment, it is called a “call” or “buy” option. Two recent federal court decisions, Chang and Doe, held that a call or buy option is not a provision that impacts the approvability of an EB-5 petition because it is solely an option exercisable by the NCE, may or may not be exercised and provides no rights to the investor. Our firm recently settled a case in federal court involving this issue, resulting in the approval of the plaintiff investors’ EB-5 petitions.

When the investor has an option to have his or investment money returned, that is called a “put” or a “sell” option. Whether such an option is violative of EB-5 law depends on whether it is a guaranteed or mandatory redemption option or whether there are contingencies that may prevent its exercise. Matter of Izummi prohibits a redemption that is effective “regardless of the success or failure of the business.” Arguably, if there is no guaranteed redemption, but rather a redemption that is in actuality contingent on the success or failure of the business, it should not be considered violative of the EB-5 requirements. 

DISTINGUISHING BETWEEN SUSTAINMENT AND SUSTAINMENT AT RISK

As explained above, the “at risk” requirement is an I-526 requirement and is contained only in the I‑526 regulations. It is not an I-829 requirement, and there is no reference to “at risk” in the I-829 regulations.

The most recent version of the USCIS Policy Manual agreed with our position, as advocated in numerous blogs, that the “sustainment” requirement only applies through the 2 years of conditional residence and not during the time that it takes USCIS to adjudicate the I-829 petition. However, the Policy Manual does not yet agree with the position we have advocated that the sustainment requirement during the 2 years of conditional residence does not also require that the investment remain at risk – – only that it be sustained and not returned to the investor. The language of the relevant regulations – –  8 C.F.R. 216.6(a)(4)(iii) and also 8 C.F.R. 216.6(c)(1)(iii) – – clearly requires sustainment for the 2 years of conditional residence but makes no mention whatsoever of a requirement that the investment remain at risk.

DISTINGUISHING BETWEEN “AT RISK” FOR INVESTMENT AND “AT RISK” FOR REDEPLOYMENT

Although one searches in vain for a definition of “at risk” in the regulations, the term is only defined in Matter of Izummi, which defines at risk as requiring a chance of gain or a risk of loss.

In many cases, especially given long quota waits, the sustainment requirement necessitates redeploying the investment money into a different project once it has been used for its original job-creating purpose as set forth in the I-526 business plan. Once the money is redeployed, it must remain at risk (at least through conditional residence). One might presume that the definition of “at risk” for redeployment purpose would mirror the definition applied for purposes of the “investment” requirement, but, according to the USCIS Policy Manual, one might be wrong. The Policy Manual creates many new requirements for an investment to be considered “at risk” in the event of redeployment, which are contained in neither the statute nor the regulations nor any precedent decision and, as such, have no basis in law. For a complete analysis of the “at risk” requirements set out in the USCIS Policy Manual for the redeployed investment, please see [http://www.klaskolaw.com/uncategorized/updated-standards-guidelines-redeployment-eb-5-investment-funds/].

The major requirement in the USCIS Policy Manual is the requirement that the money be “engaged in commerce”, which apparently means more than merely redeploying the money into an investment in which there may gain or loss. In an appropriate case, this may be the subject of litigation unless the USCIS policy is changed before that occurs.

DISTINGUISHING DEBT VERSUS EQUITY
USCIS has provided no definition of the type of “debt arrangement” that is prohibited by 8 C.F.R. 204.6(e). In litigation challenging any finding by USCIS that an apparent equity investment constitutes a “debt arrangement”, we reference three sources that do provide such definitions and distinctions. First, Black’s Law Dictionary states that debt requires an “obligation of a debtor to pay” and the “right of a creditor to receive and enforce payment.” Also, there is a complete body of statutory and case law under the Internal Revenue Code that distinguishes debt from equity. In addition, under generally accepted accounting principles, there are clear lines of demarcation between debt and equity. As a result, when this is an issue, we include an expert opinion from a CPA regarding the treatment of the investment as an equity investment under tax law and accounting principles. Generally, a federal district court will give little to no deference to a USCIS determination that an investment constitutes debt when it is able to cite to no standards and when the record contains expert opinions and citations to court decisions under the tax laws and generally accepted accounting principles.

DISTINGUISHING MATTER OF IZUMMI RELATING TO GUARANTEED REDEMPTIONS

Matter of Izummi provides three separate requirements for an impermissible guaranteed redemption: “an unconditional promise” to repay an investor at a “fixed price” and at a “fixed maturity date.” In parsing any USCIS decision, we focus on proving that any language in the offering documents regarding redemption does not include any of these elements.  However, there is an argument that we have raised in litigation that the language of Izummi only triggers a guaranteed redemption if all three elements are present. For example, an unconditional promise to repay that does not involve a fixed price or a fixed maturity date arguably should not be violative of Izummi. A promise subject to conditions to repay at a fixed price and/or at a fixed maturity date arguably should not be considered to be violative of Izummi. USCIS does not always agree with or understand this, which may necessitate litigation.

DISTINGUISHING MATTER OF IZUMMI FROM REALITY

Matter of Izummi analogizes an investment to a marriage. According to Matter of Izummi, just like a marriage cannot be entered into with the intention of dissolving the marriage, so too an investment cannot be entered into with the intention of liquidating the investment and seeking a redemption. The disconnect of that statement in Izummi from reality is very helpful in educating a federal district court judge regarding USCIS’ expertise to adjudicate investment cases. 


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E-2 Visa Issues for Chinese Clients

4/25/2018

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By: H. Ronald Klasko, ABIL Lawyer
​Klasko Immigration Law Partners, LLP Blog

My colleague, Oliver Yang, has been in China the last few weeks; and I am preparing for my next trip to China in May. The main focus of our meetings in China is to confer with agents and their clients interested in applying for E-2 visas based on acquisition of citizenship in Grenada.

Based upon our experience with our Chinese clients, the following are some of the questions that we are most frequently asked, together with our responses:
 
1. How much money do I have to invest to get an E-2 visa?
Although we have had success with E-2 visa applications based upon investments in the range of $100,000, we generally prefer to see investments in the $200,000 + range if possible. There are two reasons for this. One reason is that often the chances for the business being profitable increase as the investment amount increases. Also, although no exact amount of employees is required, a larger investment often is accompanied by an increase in the number of employees, which is helpful for the E-2 visa application process. Ultimately, the key issue is presenting a credible case that the amount of the investment is sufficient for the type of business in which the investment made to be successful.
 
2. Does the entire amount of the investment have to be made at the time of filing the visa application?
There are different answers to this question depending upon whether the application is based upon an investment in an existing business or in a new business. If the investment is being used to acquire part or all of an existing business, it is usually sufficient if the investment is deposited in an irrevocable escrow with the investment amount released from escrow upon approval of the E-2 visa application. If the investment is made in a new business, it is best if at least some of the investment has already been used to start up operations of the business. The remainder of the investment may be in irrevocable escrow. It is acceptable if the investment amount is refundable in the event that the E-2 visa application is not approved (some franchise agreements now include this provision). There is a difference among U.S. consulates around the world regarding the necessity that a new business actually has started operations, so it is often safer if the business is actually operating.
 
3. Does the Chinese identity of the E-2 visa applicant affect approvability?
In our experience, the answer to this is no. We have great experience with many E-2 visa applicants around the world who are dual citizens applying based on a second country citizenship. In the case of China, we have not seen any examples of applications for E-2 visas by citizens of Grenada (who also have Chinese passports) being denied for that reason. The U.S. recognizes dual citizenship and allows E-2 visa applications by citizens of a treaty country who are also citizens and residents of a non-treaty country.
 
4. Is it possible to convert an E-2 visa to a green card?
This is very possible, in most cases through the direct EB-5 process. The amount of the E-2 investment can be used as part of the direct EB-5 investment. In most cases, the direct EB-5 investment amount must be at least $500,000. If, for example, an E-2 visa applicant had already invested $250,000 for the E-2 visa, the direct EB-5 application could be based upon another $250,000 investment. Even though it is expected that the EB-5 investment amount is likely to increase in the coming months or years, the investor will likely be grandfathered at the $500,000 investment amount as long as the EB-5 petition is filed before the increase in investment amount becomes law. There are many issues involved in converting from E-2 to EB-5; we have extensive experience in dealing with these issues. It is best if we deal with these issues at the time of the E-2 visa application in order to prepare in advance.
 
5. Is it possible for two Chinese citizens to apply for E-2 visas in the same business?
Yes, it is possible, but it is more difficult. In most cases, when we are doing this, we have one of the applicants (who is a Grenada citizen) apply as the investor and the other applicant (who may or may not be a Grenada citizen) apply as the manager of the treaty investor company. If only one of the applicants is a citizen of Grenada, that applicant must own at least 50% of the business. It is best if that applicant invests most or all of the total investment.
 
6. What are the options for the child of an E-2 investor when the child is turning 21?
One option is for the child to change status to F-1, which can be done in the U.S. The other option is for the child to make his or her own investment and apply for his or her own E-2 visa.
 
7. Is it possible to obtain an E-2 visa if an EB-5 petition has already been filed or if some other permanent residence application has been filed?
It is possible, but there could be issues. A key issue is whether the EB-5 petition (or other immigrant petition) indicated that the applicant would be obtaining his or her immigrant visa at a U.S. consulate outside of the U.S. Whenever we file an EB-5 petition, we indicate this on the I-526 form. The reason that this is important is that the U.S. consular officer has to be satisfied that the applicant intends to leave the U.S. and apply for an immigrant visa (green card), if at all, outside of the U.S. We are very careful in preparing our clients for the consular interview on this issue, because the response to the consul on this issue is very important. Our success rate in these types of applications has been very high.
 
8. Is it necessary to apply for the E-2 visa at the U.S. Consulate in Barbados?
Most applications by Chinese applicants have been filed at the U.S. Consulate in Barbados, and the success rate has been high. However, it is not necessary to apply there. The application can be filed at the U.S. Consulate in Guangzhou (and has been done successfully), at the U.S. Consulate in any country where the applicant has a residence (such as Hong Kong or Singapore, for example) or at a third country consulate.  We have been working with a variety of U.S. Consulates around the world which accept third country E-2 visa applications. Part of our service to our E-2 visa clients is choosing the best consulate for the purposes of the individual client and then preparing the client for the issues that may arise at that consulate.
 
9. What problems have arisen for Chinese citizens applying for E-2 visas based on newly acquired Grenada citizenship?
Although, to our knowledge, a high percentage of these applications have been successful, the biggest issue that we have seen relates to Chinese citizens who acquire Grenada citizenship based on the donation option (rather than the acquisition of property option) and who do not establish any nexus (connection) with Grenada. Although this is not a legal requirement, it has been a requirement imposed by some U.S. Consulates, including the U.S. Consulate in Barbados. For our clients choosing the donation option, we suggest that the client at least have visited Barbados and have an address in Barbados (for example, based upon a lease of property for one year). It is possible, and best, for the client to obtain a Grenada residence card at the same time as acquiring citizenship.
 
10. Is it necessary for the Chinese/Grenadian E-2 visa applicant to actively manage the E-2 business?
It is possible, but not necessary, for the E-2 visa holder to actively manage the business. If he or she will not actively manage the business, we will want to make certain that the E-2 visa application package makes clear that the E-2 visa applicant will be in a position to “direct” the manager and participate in the successful development of the business. This is a key focus in our vetting process for E-2 investment vehicles that we present as options to our E-2 visa applicants when requested.
 
11. Is it possible for the E-2 visa business to have been established prior to acquisition of Grenada citizenship?
This is possible, although we need to review the documents carefully. There is no problem if the business has been in existence for some period of time. However, issues may arise if we are relying upon investments made before acquisition of Grenada citizenship. These issues can usually be handled successfully with advance planning.
 
12. Have Chinese applicants who obtain Grenada citizenship been successful in applying for E-2 visas?
Yes, many applicants have been successful. The issues for Chinese/Grenadian E-2 visa applicants are the same as the issues that we have been working with for clients applying for E-2 visas from over 80 countries around the world. These are not new issues, and we have significant experience in dealing with these issues worldwide. The only issues that we have seen that specifically involve Chinese nationals applying for E-2 visas after recent acquisition of Grenada citizenship involve the issue of lack of “nexus” with Grenada discussed in response to a previous question above.

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EB-5: The Best (and Only?) Option for Many Indian Nationals

4/19/2018

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By: H. Ronald Klasko, ABIL Lawyer
​Klasko Immigration Law Partners, LLP Blog

It is not easy being a citizen of India who wants to live and work in the U.S. and become a legal permanent resident and possibly a citizen of the U.S. We know – – we represent many of them.

Our Indian clients don’t just face a “double whammy”. They face a multi-front coordinated series of hurdles and roadblocks.

Let’s set out the problem, and then we’ll provide what, for many, is the only solution.

The present Administration in Washington has been no friend to Indian citizens. Here’s why:

  • Upon completion of studies, our Indian client is often eligible for practical training (“OPT”). The present Administration is actively attempting to restrict OPT, which has been the subject of federal court litigation.
  • If our Indian client wants to work in the U.S. after her student status expires, in most cases she will need to be sponsored for an H-1B visa. Unfortunately, that requires entering the H-1B lottery with about a 1 in 4 chance of being selected in the lottery unless she has obtained a master’s or higher degree in the U.S. (the chances go up to about 3 in 4 if she does have such a degree).
  • If our Indian client is lucky enough to have his petition selected in the lottery, the chances of having the H-1B petition approved have been significantly reduced by a combination of 3 separate new restrictive adjudication policies of USCIS relating to H-1B adjudications, especially focused on occupations which predominantly attract Indian nationals. These new interpretations include redefining an H-1B “specialty occupation” to preclude many IT and other positions that may have more than one possible major field of study for entry into the occupation. Another restrictive interpretation has produced denials of H-1B petitions that pay level 1 wages. A third restrictive new policy is to require H-1B employers to identify in advance the specific itinerary of all work locations at which the employee will work during the course of the 3-year H-1B approval period. This is often not possible.
  • Even if our Indian client is able to navigate through these new restrictions, there is no confidence that she will be able to get an extension of her H-1B status. Prior to the implementation of a new policy, USCIS always gave deference to its approval of an H-1B petition when it came time to filing an extension. Almost unfathomably, USCIS now states it will give no deference to its previous approval. As a result, any Indian national in the U.S. in H-1B status (and any employer of such an individual) has no assurance that she will be able to remain in the job going forward.
  • Assuming that our Indian client is lucky enough to have an employer that is willing to sponsor him for a green card through the PERM labor certification process, his application will go into the EB-2 or EB-3 quota. Although no one knows for sure how long the wait will be in those categories, a conservative estimate is in excess of 12 years. During those 12 years, if he leaves his employer, or even if he gets promoted to a new position, he would have to start the process all over again.
  • The silver lining that enables an Indian citizen to obtain H-1B extensions during the entire quota waiting period was provided in a law entitled AC21. There are rumblings that the present Administration is attempting to chip away at, or repeal, that legislation.
  • Until April 2018, the confluence of all of the above hurdles have led us to advise our Indian clients that the only way out is EB-1 (extraordinary ability) or EB-5 (investment). However, starting in April 2018, the Indian EB-1 quota is backlogged to 2012. While that cutoff date may move forward in the coming months, it is likely that the waiting list in the EB-1 category for Indian nationals will not be short lived.
That leaves one option for the Indian national seeking to obtain permanent resident status in the reasonably near future. That option is EB-5. While the minimum $500,000 investment amount means it is certainly not an option for all of our Indian clients, it is an option for some – – either through their own means or through gifts – – and it is an option that allows the Indian citizen to have flexibility in his employment, including the ability to be promoted or to switch employers without affecting her green card application.

Actually, the time is especially propitious for considering the EB-5 process for two reasons. The $500,000 investment amount has been in place since the program started in 1990. There is a good chance that it will be increased in the near future. An application filed before the increase will grandfather the Indian investor at the lower amount.

Secondly, there is no quota waiting list for Indian EB-5 investors… yet. The increasing demand for EB-5 in India will likely create a quota backlog in future years. Getting in line now may save a multi-year wait.

I will mention one other option, which may have a lower investment amount but does not lead to a green card. It does, however, lead to the ability to remain in the U.S., perhaps indefinitely. That is the option of obtaining citizenship by investment in Grenada (minimum investment amount of $150,000) and obtaining an E-2 treaty investor visa in the U.S. (no minimum investment amount, but many E-2 visas have been approved at the $100,000 to $200,000 investment level). Any reader interested in this option can refer to any of the numerous blogs that I have published on this subject.

So, while the immigration paths are being systematically blocked for many citizens of India who seek a long-term future in the U.S., for some, there is still a light at the end of the tunnel.


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EB-1 for Artists: A Creative’s Approach

4/3/2018

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By: Feige M. Grundman, Senior Associate of H. Ronald Klasko, ABIL Lawyer
Klasko Immigration Law Partners Blog

Given its recently politicized, colloquial nickname of “the Einstein Visa,” attaining a green card through the EB-1 Extraordinary Ability classification might seem like an impossible dream for anybody working outside theoretical physics. Although the criteria for qualifying are tied to an uncommon level of ability, those abilities need not be in quantum relativity studies or particle physics. In fact, there’s a corner of the EB-1 program specifically aimed at providing a path for talented artists and performers. In this post we’ll dispel myths, reveal opportunities, and offer some strategies to set yourself up for success when applying for an EB-1 visa based on Extraordinary Ability in the arts. Because although it’s an honor to be nominated, the real goal is to take home the prize. Which brings us to one of the primary misconceptions about EB-1 immigration for artists and performers: that only winners of major industry awards stand a chance at securing this classification.

Though having an Oscar on the mantel certainly doesn’t hurt, receipt of a major international award is just one possible qualifying accomplishment. In fact, there are ten additional criteriaused to evaluate eligibility for EB-1 Extraordinary Ability classification in the arts. Of foremost consideration are the criteria related to the expression and presentation of your ability as an artist. Specifically, these criteria ask for evidence of:

  • Original artistic contributions of major significance; and
  • Performance of a leading or critical role for distinguished organizations.
Either (or both) of these criteria can form the foundation of a successful petition. In our experience, there are a variety of ways to demonstrate the major significance of an artist’s work that also serve to satisfy one or several of the more quantitative criteria associated with the classification. The EB-1 practice team at Klasko Immigration takes an approach that leverages both your original work itself and the impact of your accomplishments to craft a petition that not only addresses the letter of the law, but also paints a persuasive picture of your merit as an artist—a subjective value that is difficult but necessary to define.

Below, we’ve outlined the factors we look for when evaluating an artist’s viability for EB-1 classification and provided some tips for long-term planning and preparation if you’re an artist or performer aiming to pursue this route to permanent residency.

Display of the individual’s work in exhibitions.
Presenting your work to an audience is a straightforward way to show that it has been deemed significant by a venue or production organization in your field. Participation in curated or juried exhibitions may meet this criterion. Make sure to save any playbills, advertisements, and promotional materials related to your work.

Published material about the individual in the media.
Evidence of the discussion of your work is one of the most effective ways to both satisfy a quantitative criterion and support the qualitative assertion that you are acclaimed in your field. The more attention received, the more intuitive it is to label your work as significant. Any published critical review can satisfy this criterion, as can interviews, feature articles, and other media coverage. It’s important to note that the published material need not necessarily mention you by name. If the troupe, exhibition, or company of which you are a part is discussed, that can be applied to satisfying this criterion, doubling as confirmation that you performed as a critical member of a distinguished organization. Try setting up a Google Alert to ensure you don’t miss any coverage of your work published online. Maintaining an active ‘scrapbook’ of your clippings is an excellent way of positioning yourself for success when the time comes to prepare an EB-1 petition.

Receipt of lesser nationally- or internationally-recognized prizes in the field.
Grammys, Tonys, and Oscars aren’t the only valid markers of achievement in the arts. Any distinction given by a governing body in your field potentially makes for strong evidence that your abilities are recognized as extraordinary. High placement in a skills-based competition that draws a national pool of competitors can also satisfy this criterion, but it’s important in either case that you thoroughly document your receipt of such honors and any official criteria by which they are judged.

Prior experience judging the work of others.
It’s an easy line to draw that, if you’ve been asked to assess the abilities of others, you must be recognized as having a certain expertise of your own. Showing that you’ve served on a jury or judging panel, perhaps in the context of an audition, exhibition, or competition, is one way to meet this criterion. Opportunities to serve in such a capacity need not be invited—you can proactively seek them out on your own. Regional qualifying rounds of national arts competitions, for example, frequently require the services of professionals in the field. Similarly, trade publications in your field may allot space for commentary pieces from working artists. Having such work published conveniently fulfills another regulatory criterion…

Authorship of articles in mainstream or trade publications.
Musings on a personal blog don’t quite meet the standard, but if you’ve ever written professionally about subjects in your field for a peer-reviewed or edited publication, such evidence bolsters the assertion that you’re considered an authoritative voice your field.

Membership in associations requiring outstanding achievement.
This criterion can be met in a variety of ways. For example, many disciplines in the arts have honors guilds to which you can apply for membership based on accomplishment. If you’re a performer, employment by a nationally-recognized symphony, dance company, or playhouse could be considered inclusion in an organization that requires prior distinction or demonstration of ability. Ultimately, any organization to which you have been granted membership based on your experience, achievements, or skills can be presented as both satisfying this criterion and confirming recognition of extraordinary ability.

Evidence of commercial successes in the performing arts.
Ticket sales, royalty checks, chart standings—any documents showing that your work has been financially successful satisfy a valuable criterion while also supporting the significance of your work.

Getting an EB-1 in the arts is not an easy feat. But you don’t need a star on the Hollywood Walk of Fame to merit the classification. There’s no shortage of ways to show that you deserve a standing ovation.

Click here for a case study summary of a successful EB-1 arts petition prepared by our team.
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EB-1 for Physicians: A Prescription for Success

3/27/2018

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By: Feige M. Grundman, Senior Associate of H. Ronald Klasko, ABIL Lawyer
Klasko Immigration Law Partners Blog

The EB-1 immigrant visa has generally been a challenging category for physicians, as the regulatory criteria for those in the sciences prioritizes academic research over the practice of medicine. However, this should not deter qualified physicians from applying for an EB-1 visa. The EB-1 practice team here at Klasko has been quite successful in obtaining immigrant classification for physicians in the EB-1 program’s Extraordinary Ability and Outstanding Researcher categories, having honed an approach that uses the classification’s comparable evidence clause to define the parameters of “extraordinary” and “outstanding” in a way that is tailored to each applicant’s individual situation. 
The good news is that you do not need to have developed an artificial heart or otherwise be a household name to obtain an EB-1 visa as a physician. You do, however, need to prove that your accomplishments are rare or unique in some way, and that they have furthered the area of medicine in which you practice. Even meeting the regulatory criteria to the letter does not guarantee approval of your petition. A successful petition must withstand the subjective assessment of the adjudicator’s “Overall Merits” analysis. This leaves a lot of room for taking a more creative, individually-crafted approach.

In our experience, physicians whose employers are willing to sponsor an Outstanding Researcher petition have a slight edge over those who take the self-sponsored Extraordinary Ability path, if only because the Outstanding Researcher classification has the formal sponsorship of an employer. However, there is no need to be discouraged if you don’t have employer sponsorship. Your home institution can still be a valuable ally, and most are happy to provide letters of reference that address vital EB-1 criteria even if they are not sponsoring the petition.

If you’re a physician or clinical researcher planning to pursue permanent residency through the EB-1 program, it’s important to start thinking creatively about your accomplishments and strengths and to begin gathering evidence in support of your petition. Below are some steps that you can actively take to bolster your chances of getting an approved EB-1 petition:

  1. Document your influence on clinical practice. Take note of the ways in which you have advanced practice in your field, such as pioneering a medical procedure, reducing adverse events, proving that a certain procedure is under-used or over-used in a given population, or improving access to care. Your documentary evidence may include published articles, case reports, and presentations at professional gatherings. Establish professional relationships with people who are using your work to inform their own practice or research, as these professionals may make for excellent petition referees, as they can speak to the impact of your work.
  2. Document any evidence-based recommendations or guidelines you’ve contributed to the field. If your influence on clinical practice has been incorporated into a formal guideline or published practice recommendation, that is a compelling piece of evidence. You do not, however, need to have influenced national practice guidelines; proving that you contributed an evidence-based recommendation to your hospital or health system, and that the recommendation is in current use, is also compelling.
  3. Document the number of procedures you have performed, especially those that are challenging or rare. In addition to providing these numbers on their own, illustrate the ways in which your skills are unique and in demand in the United States or the world, backing it up with published reports or other evidence.
  4. Demonstrate the ways in which you specialize in complicated or rare cases. Many physicians do not perform certain procedures but specialize in diagnosing, assessing, and managing patients with complex or rare diseases. One effective way to create documentation of your accomplishments in this area is to publish case studies.
  5. Give presentations at other institutions detailing any original approaches to diagnosis or treatment you may have developed and implemented. Perhaps you’ve developed a novel or uncommon diagnostic methodology that you plan to publish. In the interim, you may want to present your methodology to the field. Giving presentations on your work at outside institutions, with the aim of educating other physicians, is an excellent opportunity to both expand your influence on clinical practice and raise your profile in the field.
  6. Seek out opportunities to judge the work of others. Researchers generally provide evidence of peer review of manuscripts for scholarly journals to meet the ‘judge of the work of others’ EB-1 criterion, but physicians have room to be a little more creative. In addition to reviewing manuscripts, physicians may judge the work of others through grand rounds, through the assessment involved in teaching continuing medical education (CME) courses to peers, by serving on hospital advisory and quality assurance boards, and by training other health care professionals in a skill and evaluating the results.
  7. Document the ways in which a fellowship you received or the board certification you were granted is considered prestigious. The fellowship may be prestigious because it is highly competitive or because it is at a renowned institution. A given board certification may require more experience or skill than others.
EB-1 petitions require a true partnership between you and your legal team. At Klasko, we use an in-depth client input process to gain a thorough understanding of you and your field so that we can tell your story in plain and persuasive language. For practicing physicians, preparing a strong EB-1 petition requires much more than checking off boxes on a list. A petition that clearly demonstrates the ways in which your accomplishments have had a measurable impact on your field as a whole—and made a personal difference to the patients you serve—has the best chance of success.
Click here for a case study summary of a successful EB-1 physician petition prepared by our team.

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EB-1: Not Just for Einsteins

3/15/2018

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By: Feige M. Grundman, Senior Associate of H. Ronald Klasko, ABIL Lawyer
Klasko Immigration Law Partners Blog

​We’re only a few months into the Trump presidency’s second year, and immigration remains at the forefront of policy and public debate. Recently, however, scrutiny was turned on the First Family itself, with a March 1st article in the Washington Post calling into question First Lady Melania Trump’s qualifications for the permanent residency granted to her in 2001 under the EB-1 immigrant visa program. The piece quoted legislators and lawyers who described EB-1 as “the Einstein visa,” reserved only for the likes of renowned academic researchers, Olympic athletes, and Oscar-winning actors. The article brought this elite means of employment-based immigration into the spotlight, igniting discussion across the news media.

Klasko partner William Stock weighed in on the matter in a March 2nd piece published by Refinery29, noting that this characterization of the EB-1 program paints an unduly restrictive picture of its scope and bar for entry. Yes, a successful EB-1 applicant must show that they have established themselves among the top professionals in their field—but they need not be a household name nor a “capital-G” Genius.

In fact, hypothetically speaking, had Albert Einstein attempted to immigrate under the EB-1 program even a full decade into his career, his success would not have been certain. A follow-up to the Post article published by the New York Times provides an entertaining illustration of this, recounting an exercise in which a blind assessment of Einstein’s 1920 résumé by a group of immigration attorneys yielded a general agreement that the subject individual was a bit underqualified and would make for a rather challenging petition.

Consider that 1920 was just one year before Einstein was granted the Nobel Prize in Physics. This goes to show that there is no clear-cut set of qualifications that make someone an ideal EB-1 candidate. The narrow interpretation of EB-1 requirements promoted in the Post article not only ignores the regulatory realities of the program, it portrays this visa classification not as exclusive, but exclusionary.

It’s the ambiguity and subjectivity of the petition adjudication process, in fact, that opens the door for a broad and varied pool of applicants. Our firm’s EB-1 practice team specializes in preparing creative, robust, and—most importantly—successful petitions for applicants working in a broad range of professions. We’ve gotten EB-1 petitions approved for cancer researchers, brain surgeons, photographers, and dog breeders alike. If there’s a job to be done, and there’s someone who does it extraordinarily well, we can find a path to EB-1. It just might require a little trailblazing.

In the coming weeks, we’ll be running a series of posts covering EB-1 options for accomplished individuals who don’t, at face value, fit the “Einstein Visa” mold. We’ll provide long-term planning guides for those considering application for permanent residence under EB-1 in the future, offering tips on what you can be doing now to set yourself up for success later on, whether you’re a ballet dancer or a rocket scientist.
​
The whole point of the EB-1 program is to bring the brightest and the best to the United States. But it’s clear to anyone who looks that genius isn’t sequestered in the ivory tower of academia. Attracting and retaining the world’s top talent should be a priority regardless of profession. You don’t have to be Einstein to know that.

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Klasko’s Criteria for Analyzing an E-2 Start-Up Business

12/13/2017

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By: H. Ronald Klasko, ABIL Lawyer
Klasko Immigration Law Partners, LLP Blog

Readers of our blogs know that we are working with nationals of many countries that do not have bilateral investment treaties with the U.S. to obtain E-2 visas following acquisition of citizenship in Grenada, which has such a bilateral investment treaty. Many of our investor clients look to us for advice on choosing a business opportunity in the U.S. that will qualify for issuance of an E-2 treaty investor visa.

We are pleased to share the criteria that we use in analyzing potential E-2 business opportunities for our clients:


  • Amount of investment required: There are two different legal requirements that we consider in analyzing the appropriate investment amount – – substantiality and proportionality. The substantiality test requires that the amount of the foreign investor’s investment is a substantial proportion of the amount necessary for the business to be viable and profitable. The proportionality test requires us to compare the investor’s investment with the total investment in the business. The investor’s investment should be a high percentage of that amount, and especially high if the total amount of the client’s investment is not a very large amount.
 
  • Number of employees: There is no exact number of employees that the investment enterprise must have. However, a significant number of employees, especially U.S. employees, can be helpful in meeting a third legal requirement – – the marginality requirement. While we prefer a business that has W-2 employees, a business that employs a significant number of independent contractors may also qualify.
 
  • Develop and direct requirement: The investor must “develop and direct” the business. If the investor will not be the day-to-day manager of the business, we review the management contracts to make certain that the investor will be in a position to confer with, advise and oversee the day-to-day manager. If the investor does not speak English, our analysis includes provisions made for the investor to communicate with the day-to-day manager.
 
  • Management of the business: If the investor does not intend to actively manage the business, we need to analyze whether the business provides a manager or a management company. For example, with franchise businesses, some franchisors do – – and some don’t – – provide management services for the franchisee’s business.
 
  • Viability/Profitability of the business: While we do not hold ourselves out as financial or business analysts, where possible we work together with financial and business professionals to ascertain the likely viability and profitability of the business. This will be discussed in detail in the E-2 business plan. Since the investor’s E-2 status is dependent on the continuation of the business, a business that fails during the term of the E-2 visa can place the investor’s legal status in the U.S. in jeopardy. In addition, many of our clients are hoping to extend their E-2 visa following the expiration of the initial 5-year visa issuance. The continuing profitability and viability of the business is critical for that purpose.
 
  • Nationality requirement: A separate legal requirement is that the investor own at least 50% of the business of which he invests (unless other nationals of his country own at least 50%).
 
  • Real, operating commercial enterprise: Although we believe that the E-2 visa does not require that the business actually be operating when the investor obtains his E-2 visa, there are a minority of U.S. consulates that impose this requirement. Therefore, in our analysis of the E-2 business, we prefer a business that can have operations commence in advance of the investor obtaining the E-2 visa.
 
  • Refund to investor: Related to the previous issue, we prefer there is some mechanism for the investor to recoup most of the investment if the E-2 visa is not issued. This analysis must take into account the irrevocable nature of the investor’s investment once the E-2 visa is issued.
​
Although the concept of third country citizenship combined with E-2 visa applications is relatively new, preparing E-2 applications for citizens of treaty countries is not at all new for our firm. We have successfully handled thousands of E-2 applications over many years, and the criteria listed about are the product of that experience.


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Providing Hope for Chinese Investors

11/27/2017

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By: H. Ronald Klasko, ABIL Lawyer
Klasko Immigration Law Partners, LLP Blog

I have just returned from 2 weeks in China. Not surprisingly, there was not a lot of interest in discussing new EB-5 projects. Especially since the publication of the DHS Ombudsman’s report, the word is out that the waiting list for EB-5 is in excess of 10 years…and getting longer. The word is also out that a solution is not likely to come from EB-5 legislation.

The options for the Chinese investor are limited, and we discussed all of them in the 7 cities that I visited. Here they are – – the new world for Chinese investors interested in immigrating to the U.S.:

  1. There is some interest in EB-5 (a small percentage of previous demand) on the part of investors who are willing to wait as long as necessary for their numbers to be reached. These investors generally have pre-teen children.
  2. There is keen interest in the option of investment in a “set aside” area (a rural or urban distressed project). New legislation likely will set aside 3,000 of the 10,000 visas for investments in these areas, which might enable investors to eliminate or significantly shorten the waiting period. Investors interested in this option include new EB-5 investors and EB-5 investors who are already on the waiting list and who are at least considering making a further investment in order to achieve their U.S. immigration goals, which often involve the education of their children.  
  3. EB-1C is the employment-based green card category for multinational managers. There is presently no quota waiting list for Chinese nationals. However, only a limited number of would be EB-5 investors would likely qualify. It may well be a good option for the investor who manages a very sizable company in China and will acquire a very sizable company in the U.S. and actively manage that company. This is not a good option for a Chinese national who wants to start up a company or who has a small company in China. Those of us who practice all aspects of immigration law know that EB-1C adjudications by USCIS have been unprecedentedly restrictive in recent times. Many investors who pursue this option will likely be disappointed.
  4. Grenada citizenship/E-2 visa is the hot topic in China. Within about 6 months, this option can result in an investor obtaining an E-2 visa that is good for 5 years and renewable indefinitely. This E-2 visa enables the children to go to public or private schools or universities; enables the investing spouse to actively manage the business in the U.S. or hire a manager; enables the non-investing spouse to work anywhere he or she wants in the U.S.; enables the investor to spend as much or as little time in the U.S. as he wishes; and, if he spends a smaller amount of time in the U.S., enables him to avoid taxation on worldwide income. The total investment amount to accomplish this result – – between Grenada and U.S. – – can be as little as $400,000. The U.S. investment can be a down payment on a direct EB‑5. With the EB-5 investment amount likely to increase to in excess of $1 million for most investors in 2018, this becomes an even more attractive option. For those investors interested in this option, we have put together a turnkey solution that includes introduction to a Grenadian agent, introduction to various business opportunities that qualify for E-2 visas, preparation of the E-2 business plan and all immigration legal services relating to preparation of the E-2 visa application and preparation for the E-2 visa interview.
  5. For some EB-5 investors, the last ray of hope is the possibility of federal court litigation challenging the U.S. Department of State’s counting of family members against the EB-5 quota rather than issuing visas to 10,000 investors per year as the law seemingly provides. Scores of EB-5 investors are in the process of providing seed funding for this litigation with many agents, regional centers and developers prepared to add financial support to the litigation. Although the legal arguments are strong, the chances of success are highly speculative given the federal courts’ reluctance to overturn a longstanding, unchallenged government action unless the government position is clearly incorrect. Many in the EB-5 community agree with me that, even if the chances of success are not high, the potential benefits are so significant that the litigation is very much worth pursuing.
Yes, it is a transition time for Chinese investors wishing to immigrate to the U.S. These options that we discussed during the last 2 weeks in China provide some hope.
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An Unusual Trip to China

11/8/2017

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By: H. Ronald Klasko, ABIL Lawyer
​Klasko Immigration Law Partners, LLP Blog

It is certainly not unusual that I will be spending the next 2 weeks in China. At times, I feel like China is my second home.

What is unusual is the subject matter of my seminars and meetings in 7 cities in China. Normally, the topic is the latest developments in EB-5, projects that agents are interested in and questions that agents have. While I am sure that there will be some discussion of these EB-5 issues, they are no longer the hot issue in China. Given the extensive EB-5 quota backlog, agents and investors want to know immigration options that exist that do not have the long quota wait or options that exist for being able to come to the U.S. (and have their children educated in the U.S.) during the long quota wait.

It is for that reason that the main focus of my speeches will be the E-2 (treaty investor) visa option following acquisition of Grenadian citizenship and the EB-1C Multinational Manager green card option, which presently has no quota backlog. For reasons that I explained in my last blog, the E-2 visa is usually a better option than the EB-1C petition, especially given the unprecedentedly restrictive interpretations by USCIS in recent months on issues regarding L-1 visas and EB-1C Multinational Manager petitions.

I will also be discussing the possibility of federal court litigation challenging the long-standing interpretation of the U.S. Department of State that the 10,000-investor provision means 10,000 people (including family members) – – and therefore only about 3,000 investors per year. Many Chinese investors who are facing an unconscionable wait to immigrate to the U.S. after having already made their investments have discussed pooling funds for such litigation. While the chances of success are highly speculative, there is a reasonable legal argument to be advanced; and the potential reward is exceedingly high.

When the discussions turn to EB-5, the topics will also be different than past visits. The expectation that the EB-5 legislation will include “set asides” for rural and urban distressed areas, which will enable investors to go to the front of the line and avoid the long quota wait, will be a topic of discussion with agents who are not interested in promoting projects for which investors will have 10+ years of waiting time. Another topic will be capitalizing projects for which there is likely to be a shortfall of EB-5 money giving the diminished market in China. Another byproduct of the long waiting period is the need to redeploy investors’ funds, in some cases for 10 years or more. The entire redeployment market creates both challenges and opportunities, as well as complex legal issues.

We are clearly at a time of transition in the EB-5 industry. I look forward to my first China visit in the new age of EB-5 and its progeny.
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