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Evaluating EB-1C Multinational Manager as an Alternative to EB-5

9/13/2018

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By: Michele G. Madera, Partner of William A. Stock, ABIL Lawyer
​Klasko Immigration Law Partners, LLP

The EB-1C Multinational Manager category is the permanent residence process for intracompany transferees, meaning the person must have spent at least one of the last three years in an executive or managerial capacity for an overseas employer and is being transferred to the U.S. to work as an executive or manager for a parent, affiliate, subsidiary, or branch office of the employer.

While this may seem fairly straightforward, these cases can be difficult. The beneficiary must be employed as a manager or executive for the entity abroad and for the U.S. company, as opposed to an owner or investor. S/he must take an active role within the company and must be able to demonstrate the oversight of personnel or a key function within the company or be an executive and be able to demonstrate this for the employment abroad and the employment in the United States. This requires detailed information about the job duties performed by the foreign national overseas and the proposed role in the United States, including how s/he functions at a senior level within the company.

If a manager of people, this would require the supervision of professional-level employees; or, ideally, management of other managers or supervisors with their own subordinate, professional-level staff. The best route is to demonstrate that there are tiers of managers: the foreign national who is overseeing managers and those managers, in turn, oversee professional level employees. By having these layers of management, it bolsters the foreign national’s credentials as manager. If a manager of a function, it is essential to demonstrate the importance of the function within the company, discretionary power to make decisions, and a substantial budget under the purview of this manager. Functional manager cases tend to be some of the most heavily scrutinized.

The company also matters. The company will need to show ongoing operations, the strength of the business, and prove that the business warrants a permanent position for this manager or executive in the United States. This cannot be a shell company that is solely created to employ the foreign national for immigration benefits; rather, there must be a legitimate business with operations in the U.S. that substantiate the need for a manager or executive. Without the staffing levels to warrant this, U.S. Citizenship and Immigration Services may find that the U.S. operations are too small to require a full-time manager or executive in the U.S.

There is a temporary visa, L-1, which tracks along the EB-1 category. The standards for the L-1 tend to be interpreted less stringently by U.S. Citizenship and Immigration Services. The L-1 can be a great option to test the waters for an EB-1C and get the person to the U.S. temporarily to start working in this managerial or executive capacity.

If a person already is employed as a manager or executive for a company overseas, but that company does not have a U.S. presence, there are two different routes to establish a U.S. business. It is possible to acquire an already existing company in the United States and take on a managerial or executive role in the United States. This is a better option than the new office L-1 option that is discussed below. This is because there are already existing U.S. operations and staff that the foreign national can take over and actively manage.

There is also an option for L-1 beneficiaries to come to the U.S. to open a new office for a company that they were employed with abroad. These can also be difficult cases and are only approved for one year initially. At the end of the one year, the company needs to prove continuing operations and the continuing need for the manager/executive. While we advise on a case by case basis, we would generally recommend waiting 2-3 years after the initial L-1 new office to start the EB-1C process, as we can use the strength of the business over the last few years (as opposed to one year) to establish the need for this manager/executive in the U.S.

There are various items to consider when weighing if EB-1C is the route to permanent residence for you. The size of the company and your role within the company have been discussed above. Another factor is your ability to speak English. We have seen Consulates question how someone can manage a team or a business if they are not fluent in English; this can be difficult to overcome. This category also allows for derivative permanent residence for spouses, as well as children under 21. If you decide to start with an L-1, your spouse and children under 21 can come to the U.S. as derivatives under L-2 status. On an L-2, your spouse is eligible to work for any employer, once employment authorization is secured; your children can go to school in the U.S. without requiring separate status in the U.S.

This blog is part of series evaluating three visa options. You can read the announcement and other blogs in the series here:

  • Announcement
  • EB-1C (current)
  • EB-1A – coming September 20
  • E-2 – coming September 27

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Successful Expedited Case Processing in EB-5

9/4/2018

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By: Daniel B. Lundy, Partner of William A. Stock, ABIL Lawyer
Klasko Immigration Law Partners, LLP

In April 2017, USCIS approved a request for expedited processing of the I-924 Exemplar Application and related I-526 petitions for the Appalachian EB-5 Regional Center’s Tryon International Equestrian Center Project. In the time since I filed the expedite request on behalf of this client, the I-924 Exemplar application for the project was approved, and a number of I-526 petitions for investors in the project – some of whom we represent, and others who we do not represent – have been approved, on average, within 45 to 60 days of filing.

Although USCIS has long allowed any petitioner or applicant to request expedited processing in any immigration matter, including EB-5 applications and petitions, and we have previously obtained expedites for one other EB-5 project (in 2012), and several individual investors, the fact that the Tryon exemplar and I-526 petitions have been granted expedited processing has created some controversy in the industry and prompted a lot of misinformation and disparagement of the project and those who speak of the expedite. Some people have contended that there is no such thing as expedited processing, or USCIS can expedite a single petition or application, but cannot expedite all I-526 petitions affiliated with a specific project. As the attorney who prepared and filed the expedite request, and who has been involved in other cases with approved expedite requests, I would like to set the record straight. I would also like to talk a little bit about what makes a successful expedite request.

First, USCIS can, and does in appropriate cases, expedite the processing of any petition or application for immigration benefits. While the decision to grant or deny an expedite request generally lies within the discretion of USCIS, USCIS has published criteria for when it will exercise its discretion. According to USCIS:

USCIS review​s​ all​ expedite requests on a case-by-case basis and requests are granted at the discretion of the office leadership. ​The burden is on the applicant or petitioner to demonstrate that one or more of the expedite criteria have been met.​​

​USCIS may expedite a​ petition or application if it meets one or more of the following criteria: ​

  • Severe financial loss to company or ​person​;​
  • Emergency situation;​
  • Humanitarian reasons;​
  • Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States​;​
  • Department of Defense or ​n​ational ​i​nterest ​s​ituation (These particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government.);​
  • USCIS error; or​
  • Compelling interest of USCIS.​


See https://www.uscis.gov/forms/expedite-criteria (last visited August 16, 2018).

Second, although USCIS will decide an expedite request on a case by case basis, that does not mean a petition by petition basis. Since the decision to expedite is within the discretion of USCIS, there is nothing that says it can only exercise it one I-526 at a time. We have personally been involved in obtaining expedites for two EB-5 projects. The first EB-5 project we worked on that obtained an expedite was in 2012. The second EB-5 project I worked on that obtained an expedite was the Tryon International Equestrian Center. In both cases, the request was to expedite the I-526 petitions associated with a particular EB-5 project. The Tryon request also included a request to expedite the I-924 exemplar allocation, which was granted. To the best of our knowledge, all I-526s associated with both of those projects were in fact expedited. In the case of Tryon, USCIS has consistently been processing these petitions in 45 to 60 days.[i]

Although we were not the attorneys, we believe that in the last five years, there have been two or three other projects that have been granted expedited processing of their I-526 petitions by USCIS. Certainly, expedites are rare in EB-5, but they exist. We believe that these are not the only two cases in which USCIS has granted expedited processing to all I-526 petitions affiliated with a particular EB-5 project, however there may only be two or three other examples since 2012.

So what does it mean to have an expedite approved? USCIS has indicated that an approved expedite request will result in the petition or application being moved ahead in line of other petitions or applications. Generally, USCIS will ensure that an expedited petition gets on the desk of an adjudicator within 45 days. However, this does NOT mean that USCIS will speed up the actual review of the case or any associated background checks. USCIS has made it very clear that the integrity of the immigration system is not diminished in any way by expedited processing. Security checks are not rushed, but are completed as thoroughly as normal. The same is true about the consideration of the merits of the petition.

Getting an Expedite Request Approved

While the expedite criteria provide some guidelines, good facts and a compelling presentation are necessary. When it comes to EB-5 projects, there are a few of the grounds that are more readily applicable than the others. It would be, for instance, very hard to describe an emergency situation that requires the expediting of the I-526 petitions associated with a given EB-5 project. Similarly, outside of disaster relief efforts, it is hard to imagine an urgent humanitarian need. National interest is usually the most compelling reason.

In the case of the Tryon Equestrian Project, the project is expected to bring more than 6,000 jobs to a region of Appalachia suffering from chronic poverty. The Appalachian region is consistently one of the poorest, hardest hit economic regions in the country, with persistent unemployment and poverty. This Project represents a long-term, sustainable, economic cluster that includes a demand generator (the Equestrian Center) and the corresponding support and supply industries that will create permanent economic improvement and opportunity in this region. Unlike, say, a hotel or office building in a major city, which generally serve existing demand, this project creates its own, sustainable, demand, which in turn leads to permanent job creation. The expedite request was supported by a non-profit organization, and by the U.S. Department of Agriculture. Although the main thrust of the expedite request was based on national interest, we also included an argument that the interests of USCIS, which include serving the original goals of the EB-5 program by facilitating the construction of an economic engine in a rural and high unemployment area, would be served by approving the expedite. The project also had broad political support from both major parties, and our client was able to do a uniquely impressive job gathering support and documentation and helping to develop a multi-tiered approach. Ultimately, we believe that this project squarely met the expedite criteria and deserved to be expedited.

In the case of individual applicants and petitioners, we have had success obtaining expedited processing for people with urgent medical needs, ailing or aging family members, loss of lawful resident status in the current country of residence, and for other reasons.

In seeking an expedite, we always try to address as many of the expedite criteria as possible. Even if the basis for the expedite is not national interest, we will try to do what we can to show that expediting the petition has a positive effect. Similarly, we will emphasize any potential financial loss, any humanitarian factors, and we will always try to get support from a government agency, non-profit, or quasi government entity.

Obtaining expedites is part science, part art, and a healthy dose of good story telling (non-fiction, of course). If you are interested in discussing the possibility of an expedite for your EB-5 project or individual application or petition, please feel free to contact me to set up a consultation.



[i] In the first, the request was made to expedite all the I-526 petitions associated with the project.  In the case of the Tryon Equestrian Project, we had filed an I-924 Exemplar application, so we made the request for both the I-924 and the related I-526 petitions.  It just so happens that at the time the request was granted, no I-526 petitions had yet been filed, so no I-526 receipt numbers appear in the USCIS letter approving the expedite request.  Regardless of this, USCIS has consistently been processing these petitions in 45 to 60 days (sometimes longer if USCIS issues an RFE on the investor source of funds).


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Introduction to EB-5 for Indian Nationals: Steps of the EB-5 Process

8/6/2018

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

As detailed in our podcasts as well as articles and blogs written by Karuna Chandani-Simbeckand Ron Klasko, with a 10+ year visa backlog for China EB-5 and the resulting slow-down of EB-5 investors from China, Regional Centers and Developers have considered India the new EB-5 frontier over the past few years. Although this was initially met with lukewarm interest and heavy skepticism by the Indian community, recent changes to H-1B adjudication and wait times of 10+ years for India EB-2 and EB-3 has sparked the interest of Indian nationals who are now exploring EB-5 as a viable option to their immigration woes.

As most of the EB-5 education and marketing efforts were previously focused on Chinese and Vietnamese nationals, I find that consultations with potential Indian clients primarily involve little more than identifying the steps in the process and explaining terms. So I thought a guide to EB-5 would be helpful to those Indian nationals who are interested in pursuing EB-5 as an option. Over the next few weeks, I will be publishing several “Intro to EB-5” articles and podcasts geared towards Indian investors to help them understand the process and answer the most frequently asked questions.

I’ll kick off the series with a brief overview of the three steps of the EB-5 process.

3 Steps of the EB-5 process.
1.  I-526 Petition: 
The investor files an I-526 petition with the U.S. Citizenship and Immigration Services once the investment has been made. The I-526 petition contains the I-526 form and two sets of documents:
i.  Project Documents: Documents from the project include a business plan, economics report, securities documents and other supporting documents to show USCIS how the project plans to spend X amounts of dollars to create Y number of jobs.
​
ii.  Investor Documents: The investor’s portion of the I-526 petition includes basic biographic documents along with detailed documents to evidence how the investor lawfully obtained and transferred the money used for the EB-5 investment.
​Approval of the I-526 petition does not grant the investor or family any rights in the U.S. Instead, the I-526 approval can be thought of as a ticket that allows the investor and dependent family member to apply for a green card. As of this post, the I-526 processing time is averaging about 18 months.

​2.  Consular Processing or Adjustment of Status
Once the I-526 petition is approved, and if a visa is immediately available, the investor, spouse, and any child who was under the age of 21 at the time of filing the I-526 petition, are eligible to apply for their green cards. If there is a visa backlog, the investor and family members must wait until a visa becomes available before they are eligible to apply for/obtain their conditional residency status.

If the investor and family are in the U.S. in valid status, they can each file for adjustment of status (Form I-485). Along with the adjustment application, each person can file for advance parole (I-131) and work authorization (I-765).  Once the adjustment application is filed, except in very limited circumstances, the investor and family should not travel until the work authorization and advance parole is approved and a combination EAD/AP card is issued. Current processing times for these applications is 45-60 days for advance parole and work authorization and 6 months for the adjustment application. Once the adjustment applications are approved, the investor and family are conditional residents of the U.S.

If the family is outside of the U.S., they can file for consular processing (Form DS-260) with the National Visa Center (NVC). Once the forms and documents have been filed, the investor and family will be scheduled for an interview at the U.S. consulate closest to their country of residence. After the interview, the investor and family will receive immigrant visa stamps in their passport. The first day they enter the U.S. is their first day of conditional resident status.

Investor and family will receive conditional resident status which is valid for 2 years.

The processing times for both the I-485 and DS-260 is averaging about 6 months from filing.

3.  I-829 Petition
The I-829 Petition is the final step of the EB-5 process. Within the 90 days before the expiration of the conditional resident status, investors and family members must file an I-829 petition with USCIS. Currently, the I-829 petition requires very little information from the investor and family members: they simply need to provide their green cards and ensure that they have not committed any criminal or immigration violation that would prevent them from obtaining lawful permanent resident status.

The project, however, will be required to document that it has spent the money and created the jobs they claimed they would at the I-526 stage.

Current processing time for I-829 petitions is about 2 years. A timely filing of the I-829 petition extends the conditional residency period for 18 months. If the I-829 is not approved before the extension lapses, investors can obtain proof of their continued conditional resident status through an InfoPass appointment at their local USCIS office.
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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 Entrepreneurs, Financiers, and Executives: A Wealth of Options

4/11/2018

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

Over the past few weeks, the Klasko EB-1 team has shared insights on how individuals in clinicaland creative professions can position themselves for EB-1 Extraordinary Ability classification—the so-called “Einstein Visa.”  By approaching EB-1 petitioning as a series of achievements that are already wedded to ongoing success in your field, rather than defining it as a singular spectacular triumph, strategies for success can be crafted even in the absence of major awards or global stardom. And though the regulatory language requiring ‘national or international acclaim’ can make EB-1 classification seem intimidating to professionals in less glamourous sectors, understanding that this qualifier can be defined as ‘sustained recognition in your field’ makes it clear that paths to EB-1 classification exist for talented and accomplished individuals in fields not typically associated with celebrity.

In that vein, our team has employed a merits-based approach to prepare successful petitions on behalf of entrepreneurs, investors, and executives who may not—at first glance—seem to be obvious candidates for this level of immigrant visa. There are, in fact, several straightforward routes under both the EB-1 and EB-2 programs that can serve the immigration interests of accomplished professionals in the business sector.

Although the plain language of the EB-1 criteria may not seem tailored to business and its related fields, there are numerous ways to satisfy the minimum three required for classification. Particularly:

  • Original business contributions of significance. If you can demonstrate and provide evidence that you have made a recognized advancement in business, finance, or economic practices, that accomplishment can form the cornerstone of an EB-1 petition. Such achievements might include implementing new business models that have been recognized or proven effective, pioneering new enterprises that are acclaimed as significant professional endeavors, or making scholarly contributions to the research literature in your field. If you can show that your peers have emulated and integrated your ideas into their own business practices, you’ve taken a big step toward demonstrating extraordinary ability.
  • Published material about you in the press. This not only includes the popular media, but also discussion of you or your business in trade or scholarly periodicals. If your work has been the subject of case studies or academic review, that can satisfy this criterion as well.
  • Service in leading or critical roles for distinguished organizations. Time spent on the board of directors or in a leading financial or operational role for a distinguished organization or business may satisfy this requirement. It’s sensible to conclude that expert guidance is critical to the success of any organization, so service as a strategic decision-maker for a notable business or institution is strong evidence that you are recognized as extraordinary.
  • Authorship of scholarly articles and participation as a judge of the work of othersare two unexpectedly relevant criteria. While ‘scholarly’ would seem to restrict applicants to authorship of papers in academic journals, the EB-1 comparable evidence clause leaves room for pieces published in trade journals as well. Evaluation of the work of others—be it as an outside consultant or internal supervisor—is another seemingly common activity that can support the claim that you are recognized as an expert in your field.
  • Commanding a high salary in relation to others in your field or receipt of national or international prizes are concrete, objective criteria that confirm both your recognized ability and standing as an expert in your field.
If your endeavors in business can be shown to satisfy any three of the above criteria and you can demonstrate through objective documentation a degree of national recognition—for example, by having been invited to speak at business schools or industry conferences—you may be qualified for EB-1 classification based on your accomplishments in business.

But with such a high bar for entry, the Extraordinary Ability classification might not be the most realistic—or necessary—route to permanent residency for every executive or entrepreneur. For individuals whose immigration situations don’t require aiming quite so high, the EB-2 National Interest Waiver (NIW) presents attractive opportunities for immigration based on endeavors in business or finance. Indeed, a late 2016 precedent decision in this area called Matter of Dhanasar created an opening for entrepreneurs and finance professionals to pursue permanent residency based on their work. For a detailed analysis of how this decision has expanded opportunities for NIW classification, see this January 2017 post from Klasko Associate Lisa Felix.

Waiver of the labor certification requirement (and for sponsorship by one’s employer) based on national interest is specifically intended for individuals who are well-positioned to advance endeavors that have substantial merit and national importance. Although ‘merit’ and ‘national importance’ are not formally defined, the critical role that the economy and job creation play in determining national welfare creates an intuitive path for asserting that endeavors in business and finance satisfy these conditions. The following are just a few ways to show that your prior and ongoing endeavors qualify you for NIW classification:

  • Your work creates jobs. It’s no secret that employment rates and job opportunity are major areas of public policy interest in the United States. If it can be shown that your endeavors will create job opportunities for Americans, you’ve got a solid argument for both merit and national importance. For entrepreneurs especially, this presents an excellent opportunity to show that your endeavors will prospectively benefit the nation regardless of the product or service you provide.
  • Your endeavors have a positive impact on the economy. If it can be shown that your endeavors substantially contribute to the economy as a whole, this can serve to demonstrate the importance of your work to the national interest. Beneficial contributions to the U.S. economy can include, among other things, the development of previously nonexistent markets or a having a history of successful investment management on a large scale. If your endeavors can be shown to spur economic activity in one way or another, the overall value of your work to the national interest can be argued easily.
  • Your work provides essential service to organizations with meritorious aims. If your endeavors in finance or business are essential to organizations that benefit the national interest, then it can be shown that your own endeavors are similarly essential and beneficial. For example, if you provide financial services or investment guidance to schools, hospitals, or non-profit organizations, you can show that institutions of national importance have specifically relied on your expertise and ability.
  • Your work furthers knowledge or instructs others in the field. Furtherance of knowledge in the applicant’s field has been recognized as imparting national benefit. Therefore, advancements you make to the scholarship associated with your field can be used to back up claims of national importance. This can include both traditional academic endeavors like the authorship or research papers or more applied educational activities, such as giving guest lectures at a university or speaking at another company’s.
  • Your work increases access to staple or quality-of-life-enhancing goods and services. In the age off apps, many entrepreneurs are seeking to bring vital services and products to consumers through more efficient and innovative access and delivery models. If you’re working on a startup or established business venture with such aims, then you’re in a good position to argue the merit and importance of your work.
Once the national importance and substantial merit of your work have been established, you must show that you are well-positioned to continue advancing said endeavor, bringing us back to the Extraordinary Ability requirements detailed above. Arguing the standing of an individual using criteria elsewhere accepted by the USCIS as a measure of accomplishment is a logical and effective approach. Dependent on one’s specific immigration needs, the EB-2 NIW provides a viable alternative when on-paper achievements in business fall just a bit short of the Extraordinary Ability mark.

Click here for a case study summary of a successful business-based NIW petition prepared by our team.


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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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