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Posts Tagged ‘Green card holders

EB-5 Progam Rewards Wealthy Foreign Investors with a Green-card

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The EB-5 immigrant visa program has rapidly grown in popularity over the last couple of years as the quickest path to permanent residency. To encourage foreign direct investment, the EB-5 employment based visa program was created by Congress in 1990 for qualified immigrant investors who invest in and manage job-creating in commercial enterprises, in order to stimulate the US economy through job creation and capital investment.

The USCIS estimates that as of this past September the program has created 41,940 jobs for U.S. workers – at no cost to the U.S. tax payer – from investments totaling $2.1 billion.

The minimum amount per investor is $1 million of capital, although that amount is reduced to $500,000 if the investment is made in a rural or high unemployment area. The invested funds must create or save at least 10 jobs for U.S. workers and the typical term of investment is 5 years. The 10,000 EB-5 green cards available each year, 3,000 are reserved for foreign nationals who invest through a Regional Center.
It should also be pointed out that the EB-5 Regional center program does not impose upon the foreign investor’s enterprise to directly employ 10 U.S. workers, instead it requires that 10 or more jobs be created directly or indirectly as a result of the investment.
The immigrant investor’s investment of “capital”, required to be at “risk”, is defined in the regulations has a sufficiently broad meaning so as that investment of capital not only include cash, but also to includes, equipment, tangible property, promissory note and indebtedness secured by assets owned by the foreign investor.

The investors are wealthy foreigners, primarily of Indian, Chinese, South African, Russian, and Pakistani origin, who have an opportunity to invest through varied businesses and in return for their investment they are able to able to obtain a green card without having to endure the long processing times associated with work and family related visa categories.

There are two distinct types of foreign investors that opt for the visa for cash program, one that place their savings to move to the U.S. so their children can get a better education and quality of life, or then college graduates that come from wealthy families who get the investing capital from their parents to they have an opportunity to settle here with a permanent green card and have the option to become a U.S. Citizen.
The Program has been renewed several times since its inception, and is currently due to expire September 30, 2012.

For more information on this program and eligibility please feel free to contact our office.

Written by MithrasLaw

March 9, 2012 at 10:51 am

U.S. Tax Implications for Green Card Holders

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This post provides an overview about the connection between immigration and taxes for a lawful permanent resident (LPRs).

LPRs, popularly known as green-card holders, are typically concerned about how their immigration status will affect their taxes. This concern is particularly important for those that have either newly acquired a green card, have moved abroad for short-term work or have retired to their native country.

There is a common misconception amongst many LPRs that you become tax residents only if you spend at least 183 days in the United States. To clarify, the 183 day rule is only applicable to non-immigrant visa holders.

As soon you acquire a green card, you are automatically classified as a US tax resident and all green-card holders, like US citizens, are required to report worldwide income by filing a federal income tax return each year (IRS Form 1040) by April 15th. So, whether you live or work outside the United States you continue to be treated as a resident for U.S. tax purposes and are obligated report your world-wide income to the IRS and this reporting requirement applies irrespective of whether the income was earned within the country or internationally.

Therefore, under the relevant regulations, you must file an annual tax return unless (a) the LPR status has been revoked or (b) if it has been administratively or judicially determined to have been abandoned or (c) the US residence status is affected by an international income tax treaty so that you are not subject to double taxation.

However, in practice these regulations may create seemingly inconsistent situations between U.S. Immigration law, U.S. tax law and income tax treaties. For instance, consider a situation where an LPR is absent from the US for a long time, and on their return a determination is made by the USCIS that the LPR has not maintained his/her green card status and thereby abandoned the U.S. as his/her permanent residence. Until that determination has actually been made, the income tax filing requirement and any tax obligations will continue for that LPR. The USCIS does not know an LPR’s status until s/he tries to return to the United States after a length of time. Therefore, although an LPR’s green card may be invalid upon entry into the United States and his/her status considered abandoned, the individual must continue to file tax returns until a final determination of revocation or abandonment has been made by the USCIS. A final determination of abandonment may not take place many years after the actual act of abandonment.

For sake of completeness, it should be mentioned that failure to file US taxes can not only hurt an individual’s chances of seeking US citizenship but may also be a criminal offense which could result in loss of green card and eventual deportation from the country.

This is a complicated area of law and if you are seeking further advice about your specific situation, it is recommended that you discuss your circumstances with an experienced attorney or CPA who can guide you about your best options.

Written by MithrasLaw

January 13, 2012 at 2:15 pm

A Single Card Now Issued for Employment Authorization and Advance Parole

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USCIS is now issuing employment and travel authorizations on a single card for certain Adjustment of Status applicants.

The new I-766 card looks a lot like the current Employment Authorization Document (EAD) but includes text that reads “Serves as I-512 Advance Parole.”  The new card is also more secure and durable.  An applicant may receive this card when he/she files an Application for Employment Authorization, Form I-765, and an Application for Travel Document, Form I-131, concurrently with or after filing Form I-485.

USCIS will also continue to issue separate EADs and Advance Parole documents as needed.  USCIS has stated that employers may accept the new card as a List A document when completing Form I-9.  This card allows an applicant for adjustment of status to travel abroad and return to the U.S. without abandoning the pending adjustment application. The traveler is required to present the card to request parole through the port-of-entry.

Written by MithrasLaw

February 17, 2011 at 1:10 pm

Green Card Re-designed to Combat and Deter Immigration Fraud

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The United States Citizenship and Immigration Services (USCIS) has redesigned the Permanent Resident card – commonly known as the “Green Card” – to combat and deter immigration fraud.
The re-designed Green Card, which has begun to be issued since May 2010, is now colored green has begun to be issued and incorporates the latest security features and state of the art technology.  The Green Card has been redesigned to prevent counterfeiting, obstruct tampering, and facilitate accurate authentication.
The main features of the redesigned Green Card are secure optical media, holographic images, laser engraved fingerprints and high resolution micro-images, all of which make it nearly impossible to reproduce.  The redesigned card also incorporates tighter integration of the card design with personalized elements which make it difficult to alter the card if stolen.  For instance, the card has special ink which creates color shifts in visual designs and fine-lined artwork and complex architecture which incorporate patterns that make it nearly impossible to reproduce, according to the USCIS. In addition, Radio Frequency Identification (RFID) capability will enable Customs and Border protection officer at ports of entry to read unique serial numbers from a distance and compare the information to the personal data on file. The card’s ultra-violet technology and tactile clues allow for accurate authentication at border crossings.
If you apply for renewal or replacement of your present Green Card, USCIS will issue the redesigned card.  If you have an existing Green Card with an expiration date, they will remain valid until they expire.  USCIS has recommended that holders of card without an expiration date apply to replace their cards with the redesigned version.  The current cost of renewing or replacing the Green card is $370.


Written by MithrasLaw

June 14, 2010 at 11:00 am

The Importance of Maintaining Your Lawful Permanent Residence (LPR) Status

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Lawful immigrants work hard and wait for years to obtain a lawful permanent residence (LPR) status or a green-card.  Many, however, forget the important requirement of maintaining their lawful permanent residence status on obtaining the long-awaited green-card.  This article discusses the factors that can be viewed by U.S. Customs and Border Protection officers (CBP) as abandonment of LPR status and provides pointers on how to preserve your green-card.
In today’s globalized economy many immigrants, after receiving a green card, decide to take up career opportunities abroad on a short-term basis or decide to return to their home country for a few years to take care of their ailing parents.  Whether you have obtained a green card through employment or a family, it is essential to understand the factors that may lead to a determination of abandonment of LPR status.
Some green card holders incorrectly believe that as long as they enter the United States within a 12-month period they will not be at risk of losing their green-card. Although it is generally true that a green-card can be presented at the port-entry after a temporary absence abroad, not exceeding 12 months, it is not an absolute rule. So, the fact that a green-card holder enters the United States each year, within the 12 month-period from the last departure, may not be sufficient and s/he could still be found to have abandoned his or her LPR status. On the other hand, a green-card holder who lives outside the United States for over a year is not regarded as automatically abandoning his or her green-card either.
This may sound very confusing but in essence whether one has abandoned his or her LPR status or green-card turns on “intent” of the green-card holder rather than solely on length of time outside the United States. To determine abandonment, officials consider factors such as reasons for extended or frequent absences from the United States; family or property ties abroad; business ties abroad; conduct while outside of the United States, such as voting in foreign elections; and failure to file U.S. Income tax returns. Intent of the LPR is a key factor and the courts will look at whether the LPR had intent to return to the United States as a home or place of employment.
Based on case law, green-card holders that have taken up permanent residency or citizenship in another country or green-card holders that have taken up employment or been long-term students outside the United States have not had positive results. On the other hand the courts have been more understanding to green-card holders who needed to remain overseas with family members who were under political threat and to those that needed to care for their terminally ill family members.
If you, as a green-card holder, plan to take a lengthy trip remain outside the United States it is prudent to seek advice from an experienced immigration attorney and to plan preservation of your green-card. Filing for a re-entry permit before your departure from the United States, is one such option. Although, a re-entry permit does not guarantee your return in to the United States, it is always a good idea to get it, whether or not you intend to remain outside the United States for longer than a year as it minimizes the risk of aggressive questioning at the port of entry and indicates to CBP that your trip abroad was of temporary nature and you had an intent to return to the United States at the end of your stay abroad.
In addition, it is fitting to mention here that if you as a LPR or green-card holder intend to live or work outside the United States for an extended period and your ultimate goal is to naturalize and become a U.S. Citizen, you should also seek legal advice on the impact it can have on your eligibility for naturalization.  LPRs who stay away from the United States for extended periods also run the risk of being disqualified from naturalization.

Written by MithrasLaw

May 3, 2010 at 11:44 am

Is a Green-card Holder Spouse’s Right to Obtain Citizenship after a Divorce Jeopardized?

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This article provides basic information about how a divorce can affect a spouse’s citizenship or naturalization application where a green-card holder spouse (an immigrant spouse),  marries a US citizen (USC) and has received his/her green card/permanent residency through marriage. So where an immigrant spouse is contemplating divorce or has obtained a divorce decree it is important to understand the consequences of  a divorce on a naturalization/citizenship application.

Assuming, that the marriage was not a sham or for fraudulent purposes, divorce does not adversely affect a spouse’s immigration status after the immigrant spouse has obtained an unconditional green card or permanent residence and in such instances a divorce will not invalidate the green card or cause the U.S. Citizenship and Immigration Services (USCIS) to deny a citizenship application automatically. More importantly, the sponsoring USC spouse cannot take the right away or attempt to revoke the green card from the immigrant spouse.

A divorce, however, may pose doubts and require the divorced immigrant spouse seeking to obtain U.S. Citizenship to reassure the USCIS interviewing officer that the marriage was not a sham. A good way to prove that your marriage was genuine is to take copies and originals of documents that show that you and your ex-spouse lived together, had joint bank accounts, and shared important and memorable moments during your time together. Examples of documents include, home title or rent receipts or home lease in both names, joint bank account statements, credit card statements, photographs of both spouses on vacation, birth certificates of children born during the marriage, etc.

Also, a divorce can delay an immigrant spouse’s right to obtain citizenship. For instance, a divorced immigrant spouse who was married to a U.S. citizen will not be able to take advantage of the short three year residency requirement, if the spouse is not married to the U.S. citizen for at least three years before the naturalization exam date. In essence, if the immigrant spouse divorces the U.S. citizen spouse before three years of marriage have passed, then s/he will have to wait until the normal five year residency requirement has elapsed before s/he is eligible to apply to become a naturalized U.S. Citizen and cannot take advantage of the three year residency requirement.

Depending on each individual’s personal circumstances, the immigration consequences can be varied and it is therefore recommended that you consult with a qualified immigration attorney to discuss your options and strategize before making a hasty decision.

Next month, I will address the implications of a divorce where a spouse has not yet obtained a green card or is in process of obtaining a green card, as a result of the marriage, and instances where a spouse has a conditional green card.

Reproduced from Lokvani where the article written by our attorney, Hanishi T. Ali, was originally published http://www.lokvani.com/lokvani/article.php?article_id=6239

Written by MithrasLaw

January 29, 2010 at 10:21 am

FY 2010 H-1B (November 2009)

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As of November 13, 2009, approximately 55,600 H-1B cap-subject petitions had been filed. The U.S. Citizenship and Immigration Services (USCIS) has approved sufficient H-1B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H-1B petitions filed on behalf of an alien with an advanced degree will now count toward the general H-1B cap of 65,000. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

Written by MithrasLaw

November 19, 2009 at 12:30 am

Obtaining Lawful Permanent Residence by Adjustment of Status

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As an extension to our article on applying for a green card for your parents or other immediate relatives, this article discusses the ways to obtain lawful permanent residence through a family based petition.

The two alternate ways in a family based petition to obtain lawful permanent resident status are: (i) consular processing which usually takes place in the intending immigrant’s country of residence and (ii) adjustment of status which is processed by the United States Citizenship and Immigration Services (USCIS) in the United States.

Adjustment of status essentially is a provision in the immigration law that allows certain persons to obtain a green-card or a lawful permanent status while being in the United States and without having to go abroad to the consular office in their home country to apply for an immigrant visa.

Adjustment of status applications must be filed when the applicant is in the US and with the USCIS.  Generally, a foreign national applying for a green card as an immediate relative or through a family based preference categories qualifies for an adjustment of status process.  A major advantage for immediate relatives is that an adjustment of status can be filed concurrently with the petition for a green card so that the immediate relative(s) are able to adjust as soon as their green card petitions are approved.

One can apply for an adjustment of status so long as:
• S/he entered the United States legally on a valid visa and were inspected and admitted or paroled.
• Never worked in the United States without valid work authorization. This means never having worked illegally.
• Was in a lawful non-immigrant status at all times when in the United States (there are certain exceptions to this requirement) . This means that the applicant has not overstayed the period of time stamped on his or her I-94.
• Were not a non-immigrant admitted without a visa under the visa waiver program (with certain exceptions).
• Were not admitted on a K visa – unless adjusting based on marriage (must occur within 90 days of entering the United States) to the US citizen spouse who filed the non-immigrant visa petition.
• S/he is not in removal proceedings.

Our office generally recommends adjustment of status where possible as opposed to consular processing since:
• The applicant does not have to return to his/her home country.
• Typically time required for obtaining a green-card is shorter through the adjustment of status route.
• Applicant is eligible to obtain employment authorization.
• Applicant has access to administrative and judicial appeal if his/her application is denied.

Written by MithrasLaw

September 29, 2009 at 2:19 pm

USCIS Announces Delay in Delivery of Permanent Resident Cards

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United States Citizenship and Immigration Services (USCIS) announced that applicants may experience up to an eight week delay in the delivery of their permanent resident card while they are in the process of upgrading their card production equipment.

USCIS Field Offices will be issuing temporary evidence of permanent residence in the form of an I-551 stamp to applicants approved for permanent residence at the time of their inteview.  USCIS has recommended taking your passport to your appointment. If you do not have a passport, you should bring a passport style photo and government issued photo identification to receive temporary evidence of permanent residence.

Written by MithrasLaw

June 4, 2009 at 4:13 pm

To Naturalize or Not to Naturalize?

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This article provides basic information about the Naturalization process. Whether to naturalize or not is an intensely personal one with many important considerations. For many naturalization is an emotional decision — for some the summit of a successful immigration process and for some the end of the last formal bond with their country of origin.  There are also many practical considerations.  Naturalization may limit ability to own property in their home land and yet others may risk deportation from the United States as result of a naturalization application. The decision, therefore, to acquire naturalization by choice requires careful analysis and consideration and you may want to discuss naturalization with an experienced attorney who can help you decide if naturalization is right for you, and, if necessary, successfully help you through the process.

What is Naturalization?

Naturalization is a process which a lawful permanent resident (a “green card holder”) in the United States is granted US Citizenship and this process culminates into adopting a new homeland and renunciation of your original citizenship.

Who can naturalize?

A person who has become a lawful permanent resident (a “green card” holder) in the United States, and is over 18 years of age, seeking to become a United States citizen can naturalize.  The process is started by filing form N-400.

Whether to Naturalize?

First, assess your own circumstances, and consider whether becoming a US Citizen makes sense and whether it will provide you advantages.  Common privileges include visa-free travel to many countries, including Canada, minor children deriving US Citizenship through you if you naturalize, being able to vote for government officials, right to sit on the jury, rights to sponsor relatives for permanent residence, the ability to apply for federal jobs, and the entitlement to full protection of the US laws. The potential disadvantages are loss of other citizenship(s), and restrictions regarding ownership of property in one’s home country,

Second, research your home country’s citizenship laws to find out whether dual citizenship is allowed or whether it will cause you to lose your current nationality. For instance, India does not allow dual citizenship and you will have to have your Indian passport cancelled after you acquire US citizenship.  You may, however, choose to acquire the  Overseas Citizenship of India (OCI) card or the Persons of Indian Origin (PIO) card that allows certain privileges, including visa-free travel to India, and exemption from registration with local police authority, to name a few.

Basic Requirements for Naturalization:

a. Residence requirement:

In order to apply for naturalization, you normally must have resided in the United States as a legal permanent resident for five year s and have been under the jurisdiction of the USCIS director or state where you file the petition for at least 3 months.  You can apply within 3 years for naturalization if your spouse has been a United States citizen for the last three years, and you lived with your spouse during that time.   Naturalization applications can be sent in up to 90 days before the three or five year mark is reached.  The two primary residence requirements can be very complicated depending on evaluation of your residence in the naturalization context.

b. Good moral character:

To qualify for naturalization, all applicants must demonstrate their good moral character during the three or five year period of residence required for your application. Some of the bars to good moral character, include, criminal convictions, trafficking in controlled substances, false testimony to USCIS, failure to pay child support, failure to pay income tax, fraudulent use of public benefits, etc.

c. Speaking, Reading and Writing English:

Applicants must speak, read, and write English.  Typically during naturalization interviews, an applicant is required to understand the questions asked by USCIS examiner and converse with the examiner, as well as, be able to write out a sentence and read a paragraph.  There are certain exceptions for applicants over fifty years of age or for those who cannot comply due to a physical, developmental, or mental disability.

d. US History and Government Test:

All applicants must demonstrate knowledge of the fundamentals of United States  history and government. The recently revised test places an emphasis on the fundamental concepts of American democracy and the rights and responsibilities of citizenship. For a list of 100 test questions see: http://tinyurl.com/57sarh. If an applicant does not pass at the initial interview, the officer will schedule a second interview within 90 days.

Reproduced from the Indian Society of Worcester’s newsletter where the article written by our attorney , Hanishi T. Ali, was oringally published: http://www.iswonline.org/eSandesh/CommunityOrgs.htm

Written by MithrasLaw

June 2, 2009 at 3:49 pm

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