EB-5 or EB-6 — Which Investor Visa is for You?

The EB-5 visa for Immigrant Investors is a United States visa that allows foreign nationals who invest money in the United States to obtain permanent residency (green card ).  The usual investment threshold is $1 million (or $500,000 in a high unemployment or rural area), creating or preserving at least 10 jobs for U.S. workers excluding the investor and their immediate family.  Investments can be made directly in a commercial enterprise (new, or existing  “Troubled Business”), or into a US government approved 3rd party-managed investment which invests the money and  takes over the responsibility of creating the requisite jobs.   There usually is a management or administration fee for managing the investor’s investment.

If the investor’s EB-5 visa petition is approved, the investor and any dependents will be granted conditional permanent residence valid for two years.  Upon fulfilling appropriate requirements, the conditional permanent residency may then be petitioned to be converted to a permanent residency.

Under the new Immigration Reform bill currently passing through the US Congress, the current EB-5 program is going to be expanded to include a new investor visa — EB-6 — that would bring down the investment threshold for those looking to invest and gain residency in the United States. Since over the past many years, barely half of the available EB-5 visas are issues every year, the new visa is designed to make use of the same pool of available visas as the existing EB-5 visa.

The fulfillment requirements attached to EB-6 differ from those for EB-5, and also distinguishes between a non-immigrant or an immigrant visa.  To gain permanent residency, the EB-6 visa calls for an investment as well as creation of 5 jobs.  Just like EB-5, an application then many be made after 2 years for a permanent residency permit.

For those looking for a non-permanent stay in the United States a three-year non-immigrant visa can be granted upon an investment of $100,000 in a U.S. company or upon creation of at least 3 jobs and annual revenues exceeding $250,000 for two years in a row.

While not utilized fully, EB-5 applications are on an upward trend over recent years, according to the United States Citizenship and Immigration Service (USCIS). More and more new investors are able to get assistance with their applications from law firms, who can both represent the investor and advise in the matters of picking the right investment vehicles and/or 3rd party “managed investment” options for both EB-5 and EB-6 visas.

Hanishi  T. Ali is an immigration and international business attorney at Mithras Law Group, a greater Boston based immigration and international business law firm, which focuses on US, Canada and UK based Immigration law. Hanishi can be reached at 617-500-3233 or at www.mithraslaw.com.

“Startup Visa” Immigration Programs in USA & Canada

There has been a lot of recent focus on the new proposed Startup Visa amendment to the U.S. immigration law.  This amendment would create a new immigrant visa category for entrepreneurs who have raised capital from qualified American investors.  This is a new employment based visa category — EB-6, and grants conditional permanent residency to the entrepreneur, who would be otherwise unable to avail of other existing immigrant visa categories such as EB-1 (Priority Worker) or EB-5 (the so-called investment visa).  The conditional residency can then convert to a permanent residency (green card) after two years if certain conditions are fulfilled.  Last week the Senate passed a bill containing this amendment by a vote of 68-32.  Before it becomes the law, the bill still has to pass the next hurdle in the House of Representatives.

Canadian government, in the meanwhile, has already launch a near identical Startup Visa program, starting in April 2013.  The aim is to encourage “innovative immigrant entrepreneurs who will create new jobs and spur economic growth.”  This is a pilot program, initially to run for five years and with a limited number of applications.  If the program is deemed successful after the initial five years, it may be formally made permanent.

The Canadian Startup Visa Program will enable immigrant entrepreneurs to launch companies that will create jobs in Canada with investment made by approved Canadian investors.  The Program will provide entrepreneurs with valuable assistance in navigating the Canadian business environment which can sometimes prove challenging for newcomers.

Hanishi  T. Ali is an immigration and international business attorney at Mithras Law Group, a greater Boston based immigration and international business law firm, which focuses on US, Canada and UK based Immigration law. Hanishi can be reached at 617-500-3233 or at www.mithraslaw.com.

Immediate Relatives Can Apply for Provisional Waivers for Unlawful Presence before they Leave the United States

Beginning today, certain immigrant visa applicants who are spouses, children and parents of U.S. citizens (immediate relatives) can apply for provisional unlawful presence waivers before they leave the United States. The provisional unlawful presence waiver process allows individuals, who only need a waiver of inadmissibility for unlawful presence, to apply for a waiver in the United States and before they depart for their immigrant visa interviews at a U.S. embassy or consulate abroad.

The new process is expected to shorten the time U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas to become lawful permanent residents of the United States.

Until today, immediate relatives of U.S. citizens who were not eligible to adjust status in the United States had to travel abroad and obtain an immigrant visa. Please know, under the current process, which continues to remain in effect, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States have to travel abroad and be found inadmissible at their immigrant visa interview before they can apply for an inadmissibility waiver.

Re-Entry Visa Requirement for India has been lifted

Travelers on Tourist visa to India were required to have a gap of at least 2 months between two separate visits to India. This requirement caused a lot of confusion and havoc among travelers to India. The restriction has been lifted days ago with immediate effect except for nationals of China, Iran, Pakistan, Iraq, Sudan, Bangladesh, Afghanistan, foreigners of Pakistan and Bangladesh origin and stateless persons.

USCIS collected $1.757 billion in fees and processed 6.592 million forms in 2011

As a Congressionally-mandated self-funded fee-based agency, USCIS collects immigration-related applications and fees through several channels, including through its field offices (Service Centers and District and Field Offices), e-filing, and the Lockbox facilities provided through the Department of Treasury.

In 2001, USCIS first began using a Lockbox facility to collect a portion of its revenues.  From 2001 to 2007, USCIS transferred additional fee-based applications into Lockbox facilities. In 2007, USCIS established the Lockbox Expansion Project to migrate the intake function for fee-based immigration forms to a lockbox environment.  At its completion in early 2011, this expansion transitioned the intake of almost all applications and fees out of the USCIS field offices and into a centralized processing environment.  The following table depicts form and fee volumes processed by the Lockbox facilities from FY 2008 through FY 2011.

Fiscal Year	Forms Processed*	Fees Collected
2008	3.152 million	$702.9 million
2009	4.352 million	$1.139 billion
2010	6.265 million	$1.600 billion
2011	6.592 million	$1.757 billion

*These totals include non-benefit requests such as G-28, I-797, Labor Certificates, etc.

AAO Processing Times (updated May 01, 2012)

This chart shows the average amount of time it takes to receive a decision in a particular type of case after the case file is received by the AAO. Processing times are directly related to the volume of cases received.

AAO Processing Times as of April 1, 2012
Form Number	Case Type	Time
I-129F	Petition for Fiancée	Current
I-129 H1B	Nonimmigrant  Specialty  Occupation  Worker	20 Months
I-129  H2	Temporary  Nonimmigrant  Worker	Current
I-129  H3	Temporary  Nonimmigrant  Worker	Current
I-129  L	Nonimmigrant  Intracompany  Transferee	22 Months
I-129  O	Nonimmigrant  Extraordinary  Ability  Worker	Current
I-129  P1,  P2,  P3	Athletes,  Artists  and  Entertainers	Current
I-129  Q	Cultural  Exchange  Visitor	Current
I-129  R	N/I  Religious  Worker	Current
I-131	Application  for  Travel  Document	Current
I-140  EB1	(A) Alien  with  Extraordinary  Ability	15 Months
I-140  EB1	(B) Outstanding  Professor  or  Researcher	13 Months*
I-140  EB1	(C) Multinational  Manager  or  Executive	21 Months
I-140  EB2	(D) Advanced Degree  Professional	23 Months
I-140  EB2	(I) National Interest Waiver	Current
I-140  EB3	(E) Skilled  or  Professional  Worker	36 Months
I-140  EB3	(G) Other  Worker	Current
I-212	Application to Reapply  for  Admission	Current
I-352	Bond  Breach	Current
I-360  EB4	Petition  for  Religious  Worker	16 Months
I-360  C	Special  Immigrant  Juvenile	Current
I-360 K	Special Immigrant Afghanistan or Iraq National Translator	Current
I-360  VAWA	Violence  Against  Women  Act  Petition	Current
I-485	Cuban  Adjustment  Act  Application	Current
I-485	LIFE  Act  Adjustment  Application	Current
I-485	Section  13  Adjustment  Application	Current
I-526  EB5	Alien  Entrepreneur	Current
I-600	Petition  for  Orphan	Current
I-601	Application  for  Waiver  of  Inadmissibility	25 Months
I-612	Application  for  212(e)  Waiver	Current
I-687	Legalization  Application  for  Temporary  Residence	Current
I-690	Legalization/SAW -Waive Grounds of Excludability	Current
I-698	Legalization  Adjustment  Application	Current
I-700	Special  Agricultural  Worker	Current
I-821	Temporary  Protected  Status	Current
I-905	Application to Issue  Cert  for  Health  Care  Workers	Current
I-914	Application  for  T  Nonimmigrant  Status	Current
I-918	Petition  for  U  Nonimmigrant  Status	Current
N-470	Application to Preserve  Residence	Current
N-565	Replacement  Naturalization/Citizenship Doc	Current
N-600	Certificate  of  Citizenship	Current
N-643	Certificate  of  Citizenship  for  Adopted  Child	Current

*  Within  current  USCIS  processing  time  goal  of  six  months  or  less

AAO Processing Times (updated March 28, 2012)

This chart shows the average amount of time it takes to receive a decision in a particular type of case after the case file is received by the AAO. Processing times are directly related to the volume of cases received.

AAO Processing Times as of January  1, 2012
Form Number	Case Type	Time
I-129F	Petition for Fiancée	Current
I-129 H1B	Nonimmigrant  Specialty  Occupation  Worker	22 Months
I-129  H2	Temporary  Nonimmigrant  Worker	Current
I-129  H3	Temporary  Nonimmigrant  Worker	Current
I-129  L	Nonimmigrant  Intracompany  Transferee	22Months
I-129  O	Nonimmigrant  Extraordinary  Ability  Worker	Current
I-129  P1,  P2,  P3	Athletes,  Artists  and  Entertainers	Current
I-129  Q	Cultural  Exchange  Visitor	Current
I-129  R	N/I  Religious  Worker	Current
I-131	Application  for  Travel  Document	Current
I-140  EB1	(A) Alien  with  Extraordinary  Ability	16 Months
I-140  EB1	(B) Outstanding  Professor  or  Researcher	11 Months*
I-140  EB1	(C) Multinational  Manager  or  Executive	21 Months
I-140  EB2	(D) Advanced Degree  Professional	26 Months
I-140  EB2	(I) National Interest Waiver	10Months
I-140  EB3	(E) Skilled  or  Professional  Worker	35 Months
I-140  EB3	(G) Other  Worker	Current
I-212	Application to Reapply  for  Admission	Current
I-352	Bond  Breach	Current
I-360  EB4	Petition  for  Religious  Worker	20 Months
I-360  C	Special  Immigrant  Juvenile	Current
I-360 K	Special Immigrant Afghanistan or Iraq National Translator	Current
I-360  VAWA	Violence  Against  Women  Act  Petition	Current
I-485	Cuban  Adjustment  Act  Application	Current
I-485	LIFE  Act  Adjustment  Application	Current
I-485	Section  13  Adjustment  Application	Current
I-526  EB5	Alien  Entrepreneur	Current
I-600	Petition  for  Orphan	Current
I-601	Application  for  Waiver  of  Inadmissibility	26 Months
I-612	Application  for  212(e)  Waiver	Current
I-687	Legalization  Application  for  Temporary  Residence	9 Months
I-690	Legalization/SAW -Waive Grounds of Excludability	Current
I-698	Legalization  Adjustment  Application	Current
I-700	Special  Agricultural  Worker	Current
I-821	Temporary  Protected  Status	Current
I-905	Application to Issue  Cert  for  Health  Care  Workers	Current
I-914	Application  for  T  Nonimmigrant  Status	Current
I-918	Petition  for  U  Nonimmigrant  Status	Current
N-470	Application to Preserve  Residence	Current
N-565	Replacement  Naturalization/Citizenship Doc	Current
N-600	Certificate  of  Citizenship	Current
N-643	Certificate  of  Citizenship  for  Adopted  Child	Current

*  Within  current  USCIS  processing  time  goal  of  six  months  or  less