Frequently Asked Questions
Since The Law Offices of Kameli and Associates was founded, we have been receiving thousands of phone calls, emails, and visits to our office from people within and outside the U.S. with questions about immigration issues. Through the hard work of our team members, we collected, picked and categorized those questions and inquiries into the following FAQ sections under each proper topic.
1. Do I have to speak English?
No. However, do try to learn English as it will help in an immigration interview.
2. Do I have to be in good health?
Yes. You must have no communicable diseases and proper vaccinations.
3. Do I have to have previous business experience or education?
The investor is not required to have any prior business experience. Likewise, the investor is not required to demonstrate any minimum level of education. The only requirement for the investor is that he/she has the required net worth and capital. (Accreditations)
4. What does it meant that the investor’s assets be “lawfully gained”?
Under USCIS regulations, the investor must demonstrate that his assets were gained in a lawful manner. This requires the investor to prove his investment funds were obtained through lawful business, salary, investments, property sales, inheritance, gift, loan or other lawful means.
5. Can money gifted by a parent or other relative be used for an EB-5 Investment?
Yes, provided that any applicable gift taxes are paid. It must be demonstrated that the gift is an actual arms length transaction and is not a mere ruse that the gifted funds will be given back after permanent resident status is granted.
6. Can I apply for an EB-5 if I have been rejected or terminated in the past by USCIS for an L-1, E-2, B, or other visas?
Rejection in the past does not disqualify the applicant, unless the reasons related to immigration fraud or other major problems. It is most important that all criminal, medical, or U.S. immigration history problems be disclosed to the Regional Center and legal counsel in advance of application.
7. Can I apply if I am currently without a valid visa?
Out-of-status nationals are no longer permitted to apply for permanent residency from within the United States. They must first return to their country of origin and apply through the United States Embassy there. Examples of “out-of-status” individuals are students, tourists, and E-2 treaty investors who no longer have valid visas because they remained in the U.S. after their visas expired or were revoked. Use extreme caution.
8. Are there any countries excluded from eligibility for the EB-5 Visa program?
No, there are no countries that are directly bared from participating in the EB-5 Program, however there are countries that do require additional licenses in order to invest. Please consult with your attorney for further information.
9. Is dual citizenship allowed under this program?
Maybe. The U.S. allows dual citizenship, but your original country of origin may not allow it. You will need to investigate this.
EB-5 VISA MATTERS
1. What is a Designated Regional Center?
An entity, organization or agency that has been approved as such by USCIS; Focuses on a specific geographic area and industries within the United States; and Seeks to promote economic growth through increased export sales, improved regional productivity, creation of new jobs, and increased domestic capital investment.
2. What is an ‘investor holdings’ account, and when does the investor transfer the money to this account?
An investor bank account is a legal, interest-bearing account established in an FDIC bank to hold the initial deposit in the trust until the completion of visa processing. This type of account is commonly used in the sales of real estate, businesses and personal property. The investor bank account is for the purpose of safely holding an investor’s funds at a leading bank in the United States. Under the agreements entered into with the servicing affiliate, the investor’s investment money is not authorized to be released from the investor bank account by the bank until the visa I-526 Petition has been approved or denied. This process was created to protect the investor.
3. How does the ‘investor holdings’ account protect me against the risk of losing my money?
The initial cash deposit from the investor is placed in a legal, interest-bearing investor holdings account. When an investor holdings account is established, the funds continue to belong to the investor
4. What issue has caused the most problem when applying for an EB-5 visa?
The most common problem area has been insufficient documentation of the source of funds. Many people try to disclose the least possible information only to have the file returned with a request for further information. It is better to provide too much information rather than too little information. USCIS case examiners require a well-documented source of funds application. Professional assistance from a certified public accountant or tax attorney is recommended.
5. After petition approval, can members of the family interview in different countries?
Family members can interview in different countries. The country of origin or where the family has current ties is the standard interview site. Often one member of the family is located in another country, such as a student attending school in the U.S. The student does not have to return to the country of origin and can adjust status in the United States at the district office of the USCIS.
U.S. GREEN CARD
1. What are the benefits of the green card?
– All legal permanent residents under the EB-5 Investor Program enjoy the same benefits as every other U.S. resident.
– The U.S. is a safe harbor for your family as well as your personal and business investments. Any member of the family with a “green card” can enter the U.S. at any time and stay as long as he/she wishes respecting residency requirements.
– Investors have constant and easy access to the United States for personal, trade and business purposes.
– Permanent residents travel to the U.S. without the need of a visa. Investors may work, live, or own their own proprietary business anywhere in the United States.
– The U.S. has internationally recognized colleges and universities for both basic education and graduate study. As a resident, the investor can benefit from lower tuition costs.
– The cost of living in the U.S. is less than most large industrial nations. Consumer goods, services, and housing are significantly less expensive than comparable services and good in most other countries.
– Students may work in the U.S. while they attend college and then continue to work afterwards, enabling the student to pay part of his education and to work while attending graduate and postgraduate studies.
– The U.S. provides many financial, social and education entitlements such as public schools, health and medical attention, social security, and education.
– The Investor has the ability to bring immediate family members to the U.S. right away and, after proper application, can apply for U.S. citizenship after 5 years.
– The unrestricted permanent residency requires no renewal or re-application. Other U.S. non-immigrant visas, such as an E-2 and H visa may never result in permanent residency, have time limits, and require additional filing with USCIS or the Department of State. Furthermore, U.S. immigration laws may change and prevent future approval when a renewal of visa is required.
2. What is a Conditional Green Card?
A conditional Green Card is a temporary Green Card valid for only two years. One year and nine months after it is issued, a three-month window opens up during which an individual must file another application (I-829) with USCIS to verify that all of the funds have been invested and employment created. When the conditional resident status has been lifted, full resident status is granted and a permanent Green Card is issued.
3. What is the difference between “conditional” and “unconditional” green cards?
Under the regulations, an investor who is approved for the EB-5 immigrant visa receives a “conditional” green card, which must be reissued after two years, subject to removal of conditions. Otherwise, the two cards offer the same rights and privileges.
4. Who receives the permanent residency (“green card”)?
Husband, wife and any unmarried children under the age of 21. It is possible for adopted children to be included in the family. Upon approval you will receive a form evidencing approval and a travel document. You should also receive a temporary green card in the mail.
5. What is the difference between permanent residency and citizenship?
Once you obtain a green card, and become a legal permanent resident, you have most of the rights and obligations of U.S. citizens, except that you cannot vote and you are not entitled to some public benefits. You are subject to the same tax filing requirements and entitled to the same tax rates and deductions as U.S. citizens. Legal permanent residents may also be subject to removal for certain criminal convictions.
Your green card is your most important travel and identification document. When your green card arrives, look at it carefully. You may need to extend it in 10 years. If you replace it before then because it is lost, stolen, or duplicated, you may file a form with the USCIS.
“Abandonment of residency” rules are an important restriction to which Legal Permanent Residents (LPR) are subject. Abandonment can occur when you are outside of the United States for more than six months without informing the USCIS of your plans in advance. The law provides that you are free to travel abroad, provided that your trip is “temporary”. Generally, the USCIS views any absence from the United States for longer than six months as not temporary. Thus, it is advisable to obtain a “re-entry permit” before your departure.
One of the most important opportunities legal permanent residents possess is the opportunity to apply for U.S. citizenship after five years. Being a LPR for 5 years is one of the basic requirements for qualifying for naturalization. A second requirement is being physically present in the U.S. for 30 months during the 5 years prior to the naturalization application. Once becoming a U.S. citizen, an individual is entitled to benefits including the right to vote, hold public office, and cannot be removed from the U.S.
6. If my I-526 petition is approved by USCIS, what is the purpose of the Consulate application and interview, and how soon do I get my “Green Card”?
Upon approval of I-526 Petition, you must wait for notification from the US Consulate in your home country to prepare documents for the Visa interview. The purpose of this procedure is to ensure that the investor and his/her family undergo medical, police, security, and immigration history checks before the conditional permanent resident visa are issued. At the interview, the consular officer may address these issues and information printed on the I-526 application, including asking the investor to summarize the nature of his/her immigrant investment. If the investor and his/her family are in the United States, then you may apply for adjustment of status by filing form I-485, and supporting documents, the application may be filed at the appropriate office of the USCIS.
7. How long must I remain in the United States each year?
The first requirement of any investor after they receive the visa at the United States overseas consular office is to enter into the United States within 180 days of visa issuance from the consulate. The investor must then establish residency in the United States. Evidence of intent to reside includes opening bank accounts, obtaining a driver’s license or social security number, paying state and federal income taxes, renting or buying a home.
A total of 180 days per year must be spent in the U.S. The 180 days need not be consecutive. You may travel in and out of the country. Proper preparation for re-entry into the US is highly recommend prior to leaving. There are a few exceptions to the 180-day rule such as students studying abroad, medical circumstances or emergency business circumstances.
The 180-day rule is in effect until you get citizenship in five years. It is still in effect when you get conditional residency and a green card.
The United States resident may work overseas if required based upon the nature of the business or profession. However, all permanent residents must remain in the US for more than 6 months each year, or they may be deemed to have abandoned their permanent residence status
8. Can my Green card be taken away from me?
The second requirement is that you do not abandon the United States as your permanent residence. As long as you are not planning to make your home somewhere else and satisfy the physical presence requirements, then legally you are still a resident of the United States. Problems may arise, however, because the USCIS will try to judge your intention by the way you act.
“Abandonment of residency” rules are an important restriction to which legal permanent residents are subject. Abandonment can occur when you are outside of the United States for more than six months without informing the USCIS of your plans in advance. The law provides that you are free to travel abroad, providing that your trip is “temporary”. Generally, the USCIS views any absence from the United States for longer than six months as not temporary. Thus, it is advisable to obtain a “re-entry permit” before your departure.
As a general rule, if you have a green card and leave the United States for more than six months, you may have difficult time re-entering the country. That is because the USCIS feels an absence of longer than six months indicates a possible abandonment of U.S. residence. To avoid a full-scale inspection, you should return within six months.
It is a common misconception that to keep your green card all you need to do is enter the United States at least once a year. The fact that if you ever leave with the intention of making some other country your permanent home, you give up your U.S. residency when you go. Once again, the USCIS will look to your behavior for signals that your real place of residence is not the United States.
On the other hand, remaining outside the United States for more than six months does not mean you have automatically given up your green card, if your absence was intended from the start to be only temporary, you may still keep your permanent resident status. However, you may no longer use your green card as a U.S. entry document. You must either apply at a U.S. consulate for a special immigrant visa as a returning resident or you must get what is known as a reentry permit.
9. I have a Green Card and plan on traveling out of the U.S. for a long time. Can I keep my Green Card?
Perhaps. The primary rule surrounding Green Cards is that you lose it if you give up your U.S. residence. The more common criterion, though, is time based. There are three important time limits to know about:
– If you are absent for less then six months, you will rarely have a problem. It is up to USCIS to prove that you abandoned your residency. Absent that, you are considered to never really have left.
– If you are absent for more than six months but less than a year, the burden of proof reverses. It becomes your job to prove that you are still a permanent resident. This is based on the concept that after six months you have to be readmitted and have to prove that you are still admissible. As a side note, after an absence of more than six months, the various criteria for admissibility apply again too. For instance, if you in the meantime had become inadmissible, say through an HIV infection, you might have a problem.
– If you are absent for more than a year, your Green Card will be considered almost automatically abandoned. Once that happened, there is usually no recourse. However, if by chance the immigration officer did not ask you how long you have been out of the U.S. when you return, then you may be in luck and able to keep your Green Card after all. You should in this case not leave the US for a very long time, and make it your bona fide residence again.
10. I need to travel out of the U.S. for more than a year. Is there anything I can do?
You can apply for a reentry permit (on form I-131) before you leave the U.S. You can depart before the reentry permit is approved. Note that waiting time may be six months or longer for issuance.
With such a reentry permit, you can return to the U.S. even after one year until the reentry permit’s expiration date. Reentry permits are issued for two years. You cannot renew a reentry permit, but you can return to the U.S. for a short time and apply for a new one. The second such reentry permit will be granted for two years ago, but subsequent ones may only be approved for one year at a time.
11. How long is a Green Card valid for?
There are several answers to this question:
– If you received your Green Card through marriage, and have not been married for two years when you go your Green Card, you should have a conditional Green Card that is good for two years. Also, if you received your Green Card through investment (EB-5); you should have a conditional Green Card for two years. You must apply for removal of the conditional within 90 days before the two years are up. Once that is approved, you have a regular unconditional Green Card. If you apply either too early or too late, you will have a problem and should consult with an immigration attorney for advice.
– If you do not have the condition removed, the Green Card will become invalid at the end of two years, and your permanent resident status will be terminated. Unconditional Green Cards are valid for ten years. This does not mean that after ten years, you stop being a legal permanent resident – only the card itself becomes invalid. You must apply for a new one using form I-90. Without a current Green Card, you cannot use it to travel out of the U.S. or as evidence that you are permitted to work.