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  1. Same Sex Couples Qualifying For EB-5 VISAS. By Lauren A. Cohen, Esq.

    In June of 2013, the U.S. Supreme Court in U.S. v. Windsor [1] found that Section 3 of the Defense of Marriage Act (DOMA)[2] was unconstitutional. This section of DOMA defined a legal marriage as between a man and a woman which in turn precluded the federal government from recognizing any same-sex marriages for benefits of federal laws or programs, including but not limited to immigration-related benefits.

    Subsequent to the Court’s decision, President Obama requested that all federal departments take the necessary steps to ensure that same-sex legally married couples receive federal benefits that are consistent with the result of this landmark decision. Thereafter, then Secretary of Homeland Security, Janet Napolitan, informed USCIS that they were obligated to review visa applications filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse. This U.S. Supreme Court case could thus effectively have a substantial impact on the granting of EB-5 visas to same-sex couples in the U.S., but at this time there is no significant data available to determine how much of an impact this case has had.

    There are many countries that have legalized same-sex marriages. These countries include the Netherlands, Belgium, Spain, Canada, South Africa, Norway, Sweden, Portugal, Iceland, Argentina, Denmark, France, Brazil, Uruguay, New Zealand, and Britain.[3] Even if a couple does not reside in a country that permits same-sex marriages, there is still a chance to apply for an EB-5 visa in the U.S. If the couple gets married in a state or country that does recognize same-sex marriages as long as they permit non-residents to legally marry in the country, then this will also qualify as a lawful marriage. Additionally, stepchildren of same-sex marriages can qualify as beneficiaries or for derivative status.[4]

    Unfortunately, civil unions and other domestic partnerships, although recognized in some countries, are not recognized as legal marriages for purposes of EB-5 visa qualification. However, an unmarried same-sex partner could apply for a B-2 visa, which is appropriate when traveling to the U.S. for tourism, amusement, visits with friends or family, rest, or medical treatment. [5]

    In conclusion, with the fall of DOMA, U.S. embassies and consulates are now adjudicating visa applications based on same-sex marriage the same way that applications for opposite gender spouses have been processed. Although specific data has yet to be published, it is certain that such a landmark decision in U.S. v. Windsor will have an impact.

    To find out about professional, well-researched, articulate, expository narrative Visa Business Plans, whether for E-2 or any other business-related Visa, as well as a variety of ancillary services, all of which are designed to specifically address USCIS’s concerns, contact e-Council Inc.com at info@ecouncilinc.com.

    e-Council Inc.com’s website, newsletter and other forms of communication contain general information about legal matters. The information is not legal advice, and should not be treated as such. You must not rely on the information on this website as an alternative to legal advice from your attorney or other professional legal services provider. If you have any specific questions about any legal matter you should consult your attorney or other professional legal services provider.


    [1] http://www.supremecourt.gov/opinions...2-307_6j37.pdf
    [2] http://www.gpo.gov/fdsys/pkg/BILLS-1...4hr3396enr.pdf
    [3] http://www.freedomtomarry.org/landsc.../international
    [4] http://travel.state.gov/content/dam/...OMA%20FAQs.pdf
    [5] http://canberra.usembassy.gov/busine...visa-info.html

    Updated 12-23-2014 at 03:07 PM by EB-5Blog

  2. Four Factors that Motivate Chinese EB-5 Investors By. Greg Finkelson

    If we look at only the U.S. side of EB-5 investments, it’s not long before we start to think that it’s all about the money. It’s any entirely different perspective for Chinese investors. For them, the investment is a means to an end. Obviously, immigration to the U.S. is that end. But do you know the factors that drive that motivation? Here are four of them.

    1. Pollution. The Chinese industrial revolution has created so much air pollution that it has been referred to as the “smogpocalypse.” Air pollution levels were recently measured at 20 times recommended safe extremes.
    2. Cancer. The cancer rates in China are extremely high. It is generally believed that the source is contamination of the food supply caused, at least in part, by the pollution. According to the World Health Organization, China accounts for 21.8% of new cancer cases reported and 26.9% of deaths due to cancer worldwide.
    3. Changing government policies. As China changes, so will government policies, especially those relative to finance and taxation. This is a particular concern for those who have accumulated investable resources.
    4. Education. Given the ability to make the choice, Chinese parents generally prefer to have their children educated in American institutions. Suffice it to say that, especially if the family are U.S. residents, both the experience and the career potential are more desirable.

    To learn the facts about the EB-5 investment visa program and how to put it to work for you, contact Dr. Gregory Finkelson at American Corporate Services or call 415-682-2550. To order my book, How to Find Chinese Investors, Agents & Clients for Your EB-5 Projects & Services - A Practical Guide for Regional Centers, Attorneys, Developers and Businessmen, click here.
  3. Evidentiary Standard in Matter of Ho Cases. By Lauren A. Cohen, Esq.

    In order to determine the outcome of an EB-5 case, adjudicators review all of the evidence presented applying the necessary standard of proof. Pursuant to section 291 of 8 U.S.C. 1361, the burden of proof is upon the applicant to present sufficient evidence to demonstrate his/her claim. The question that remains is what is the standard of proof used in EB-5 petitions and applications? According to Matter of Chawathe, 25 I&N Dec. 369, 375-376 (AAO 2010)[1], the petitioner or applicant must establish each element in question through a preponderance of the evidence.

    The preponderance of the evidence standard dictates that the evidence submitted must show what is claimed is at least 51 percent more likely than not true. As such, not all doubt needs to be removed. Thus, even if some doubt is left with the adjudicator regarding the verity of the evidence, provided that a substantial volume of credible evidence was submitted to show to demonstrate that the claim is probably true then the standard has been met. The standard of “Preponderance of the evidence” is a much lower standard of proof than what is required in a criminal case, wherein the prosecution needs to prove the case beyond a reasonable doubt.

    EB-5 Visas are granted to applicants who invest the minimum required ($500,000 or $1,000,000, depending on the location in which the business is located – please inquire for further details) capital into a New Commercial Enterprise that creates (or preserves, if the business qualifies as a “troubled business”) at least 10 full-time jobs for qualifying U.S. workers within two years of the investment.[1] In order to demonstrate that the New Commercial Enterprise will create at least 10 full-time jobs, sufficient evidence by way of a comprehensive, detailed, and credible business plan demonstrating the need for the jobs and a timetable for hiring employees should be submitted.[2]

    According to Matter of Ho, 22 I&N Dec. 206 (Assoc. Comm’r 1998)[1], a comprehensive business plan as contemplated by the regulations should contain (1) a business description; (2) the business structure; (3) a marketing plan with target market analysis; (4) personnel experience; (5) competitive analysis; (6) required licenses and permits; (7) a timetable for hiring; (8) job descriptions; and (9) budget and financial projections. Clearly, a Matter of Ho-compliant business plan is essential in order to satisfy the threshold burden required to be established by a preponderance of the evidence. However, it is not mandatory that the Business Plan include all of these required elements, but rather that the burden of proof is satisfied by way of the elements that are included. USCIS must be confident that the business plan will be executed and the jobs will be created in order to accept it.

    However, in order to understand how a comprehensive business plan can make or break an EB-5 case, it is best to review an actual Administrative decision. The petitioner’s initial application was filed on December 4, 2012 including: (1) documents relating to the source of the petitioner's claimed investment in the NCE; (2) the NCE's corporate documents, including documents showing the petitioner's claimed investment in the NCE; (3) documents from the U.S Census Bureau relating to Texas; and (4) the NCE's business plan. An RFE was issued in March of 2013 requesting evidence: (1) that the NCE was located in a TEA; (2) that the petitioner's requisite capital had been placed at risk in the NCE in light of LLC's obligation to secure $2 million to invest in the NCE and the NCE's obligation to redeem the petitioner's interest in the NCE; (3) that the capital the petitioner invested in the NCE was obtained through lawful sources; and (4) that the NCE would meet the job creation requirements. Ultimately, the appeal was denied on May 27, 2013 because the petitioner could not meet the burden of establishing the proof by a preponderance of the evidence.

    In conclusion, it is clear that the business plan originally submitted did not contain many of the required elements especially an adequate market analysis or budget and financial projections. A quality team consisting of knowledgeable business plan writers (attorneys), a CPA, a PhD., an MBA, and others experienced in the EB-5 process will assist you to determine what is necessary to comply with the Matter of Ho requirements, whether or not all of the required elements are present.

    To find out about professional, well-researched, articulate, expository narrative Visa Business Plans, whether for EB-5 or any other business-related Visa, as well as a variety of ancillary services, all of which are designed to specifically address USCIS’s concerns, contact e-Council Inc.com at info@ecouncilinc.com.

    e-Council Inc.com’s website, newsletter and other forms of communication contain general information about legal matters. The information is not legal advice, and should not be treated as such. You must not rely on the information on this website as an alternative to legal advice from your attorney or other professional legal services provider. If you have any specific questions about any legal matter you should consult your attorney or other professional legal services provider.


    [1] Id




    [1] http://www.uscis.gov/working-united-...grant-investor

    [2] http://www.justice.gov/eoir/vll/intdec/vol22/3362.pdf




    [1] http://www.justice.gov/eoir/vll/intdec/vol25/3700.pdf
  4. AAO Decision Regarding a Manufacturer Of Jello Shots By Lauren A. Cohen, Esq

    In a decision dated July 29, 2014, the Administrative Appeals Office (AAO) denied an appeal by a petitioner claiming that a comprehensive Business Plan was submitted. The AAO agreed with the original decision and the petitioner’s appeal was dismissed.

    The petitioner’s investment was through an established Regional Center to support a New Commercial Enterprise (NCE) in a targeted employment area. The NCE was in the business of developing, producing, selling and manufacturing alcoholic gelatin shots. There were several issues that AAO addressed; however, this article will focus on the issue relevant to a comprehensive Business Plan.

    The petitioner’s submission included a Business Plan and Economic Impact Analysis with the initial filing. One major issue highlighted in the RFE was that the petitioner did not source and itemize all pro forma financial data. The AAO stressed that according to Matter of Ho, 22 I&N Dec. at 213[1], detail is essential in order for a Business Plan to be credible (emphasis added). Furthermore, they noted that “(m)ere conclusory assertions do not enable USCIS to determine whether the job-creation projections are any more reliable than hopeful speculation.” On appeal, the petitioner still did not submit the missing data.

    Additionally, the Request for Evidence (RFE) which was issued in the case stated that the sales projections and marketing costs were not shown as reasonable compared to industry standards (emphasis added). On appeal, the petitioner argued that the sales projections and marketing costs were prepared by the president of the company who has actual industry experience. Furthermore, the petitioner argued that Matter of Ho did not require an independent entity’s projections and analysis. However, the AAO indicated that was not the issue but that the petitioner did not submit any evidence that showed who provided the projections. Furthermore, the petitioner did not submit copies of contracts to show any agreement(s) to distribute the gelatin shots.

    There were many other issues most of which involved insufficient evidence that was not resolved upon appeal. In conclusion, it is clear that documentary evidence is necessary to support a credible Business Plan. In order to prevent RFEs and denials and to ensure that a credible Business Plan is submitted at the outset, the proper team of professionals needs to be consulted.

    To find out about professional, well-researched, articulate, expository narrative Visa Business Plans, whether for EB-5 or any other business-related Visa, as well as a variety of ancillary services, all of which are designed to specifically address USCIS’s concerns, contact e-Council Inc.com at info@ecouncilinc.com.

    e-Council Inc.com’s website, newsletter and other forms of communication contain general information about legal matters. The information is not legal advice, and should not be treated as such. You must not rely on the information on this website as an alternative to legal advice from your attorney or other professional legal services provider. If you have any specific questions about any legal matter you should consult your attorney or other professional legal services provider.


    [1] http://www.justice.gov/eoir/vll/intdec/vol22/3362.pdf
  5. What is a Targeted Employment Area? By Lauren A. Cohen, Esq.

    One of the requirements of an EB-5 investor is to invest a certain amount of capital in a new commercial enterprise (NCE). The question is, what amount of capital does the investor need to invest? The answer depends on whether or not the NCE is in a targeted employment area (TEA).

    According to 8 U.S.C. § 1153(b)(5)(C)(i), the required capital investment amount is $1,000,000. However, 8 U.S.C. § 1153(b)(5)(C)(ii) and 8 C.F.R. § 204.6(f)(2), allows an exception where the NCE is in a targeted employment area. A “targeted employment area” is a rural area or an area experiencing unemployment of at least 150 percent of the national average rate.[1] “Rural area” is defined as outside of a Metropolitan Statistical Area, or the outer boundary of any city or town having a population of 20,000 or more (based on the most recent decennial census of the United States).[2]

    The reason why Congress added this exception was to encourage investors to create jobs in areas that have the greatest need. Logically, this would be in rural and areas of higher rates of unemployment. To qualify, the NCE must be considered to be principally doing business in this location. Several factors are examined to determine whether the NCE is principally doing business in that area, which include:

    (1) the location of any jobs directly created by the new commercial enterprise;

    (2) the location of any expenditure of capital related to the creation of jobs;

    (3) where the new commercial enterprise conducts its day-to-day operation; and

    (4) where the new commercial enterprise maintains its assets that are utilized in the creation of jobs. Matter of Izummi, 22 I&N Dec. at 174[3].

    Another important item to note is that even if a Regional Center was previously designated as a TEA, this does not mean that it will automatically be approved as a TEA for all future investments. An investor must hire a professional Team which includes a qualified economist who can confirm that the NCE is still considered to be located in a TEA.

    Additionally, the investor may seek to have an area designated as a TEA. To do so, the following evidence will be required:

    (1) evidence that the area is outside of a metropolitan statistical area and outside of a city or town having a population of 20,000 or more;

    (2) unemployment data for the relevant metropolitan statistical area or county; or

    [1] http://www.law.cornell.edu/uscode/text/8/1153
    [2] Id
    [3] http://www.justice.gov/eoir/vll/intdec/vol22/3360.pdf
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