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How to Count Prior Investments in the US Towards an EB-5 Green-card

By | Blog, Business, E-Visa, EB-5, Green Card, immigration, Immigration Law, Lawful permanent resident, LPR, News & Announcements, Visa | No Comments

 

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An EB-5 immigrant visa is a visa that allows you to become permanent resident if you invest 1-million dollars (or 500k in certain circumstances) and create 10-jobs for US citizens or residents. (Some other day we’ll talk about what “10-jobs” mean. Today I want to talk about how to count the 1-million amount when you have already invested money in the US). When funds have already been invested, there is a lot of confusion as to what counts and what doesn’t.

For the lay reader it might seem simple. 1-million is 1-million. However, as most things in the law, it is not simple and, 1-million might not be 1-million.

Let’s put an example to make it more graphic.

Let’s say Juan wants a green card through the 1M-investment program. Juan has been in the United States for 3-years (under another status, an E2 business visa). When he first came to the US he invested 50k. Because he is so good, he multiplied the 50k, and with only that 50k he generated another 950k in profits from his company. (unlikely but for purposes of explaining the 1M situation, it helps us).

In our example, Juan can only use the 950k generated by the business only if those 950k were distributed by his company to him as profits and he paid taxes on it. Once the money passes through to him and is taxed, then that money can count as part of the 1M investment for an EB5-green card visa. The reason (though not commonsensical from a business stand point since most business retain earnings or reinvest in the company) is that the EB-5 visa regulations talk about “foreign investor.” So the government wants the money to be “foreign” and that it comes from an “investor”—a human being. This is why they make you pass through the money before it can be counted.

In our example if we assume a tax rate for Juan of 30%, Juan would only be able to invest 665k of the 950k (Because 285k would be taxes). But this scenario is unlikely, because generally businesses have partners, and if, for instance Juan was a 50% owner, then we can only count the money that belongs to him, i.e.: 50% of the 665k or 332.5k.

EB-5 (green card) visas are complicated. It all starts simple: invest 1M and create 10-jobs. But, as seen, it is far from straight forward.For more information on investment visas call 305-570-2208 or email at eayala@ayalalawpa.com.

Ayala Law Obtains Visas for Plaintiff in Mass Tort Litigation

By | Admission, B1 Visa, Blog, immigration, Immigration Law, Litigation, News & Announcements, Travel Abroad, Visa | No Comments

 

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In what was an uphill process, Ayala Law obtained special visas for over 33-plaintiffs and witnesses to travel for litigation in the United States. The Plaintiffs-Applicants are Peruvian citizens from a remote, poor area of the city of La Oroya, Peru.

The plaintiff are part of a case filed in federal court in Missouri where they are seeking recovery from several corporate and individual US Defendants for injuries, damages and losses caused by exposures to lead and other toxic substances as a result of Defendants use, management, supervision, and release of materials from a metallurgical complex in the region of La Oroya, Peru.

The Plaintiffs were minors at the time of their initial exposure and injuries. At critical times during gestation and their developmental years, Plaintiffs were exposed to damaging levels of lead and other toxic substances including arsenic, cadmium, and sulfur dioxide. Attorney Eduardo Ayala has been involved in this case since early 2013.

The visas were crucial to allow the plaintiffs to appear at their deposition in Saint Louis Missouri. Had they not been able to appear to their deposition in the United States they could have faced adverse rulings in the case or even dismissal.

For information about visas call 305-570-2208 or email eayala@ayalalawpa.com

Can you Travel to the United States on a Visitor Visa to Litigate?

By | Admission, B1 Visa, Blog, immigration, Immigration Law, Litigation, News & Announcements, Travel Abroad, Visa | No Comments

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The Immigration and Nationality Act (INA) establishes that everyone is presumed to be an immigrant except, among others, certain categories of aliens visiting for business or for pleasure. Section 101(a)(15)(B) of the INA states that “ . . . an alien . . . having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure . . .” is not an immigrant. See 8 U.S.C. 101(a)(15)(B) [1101(a)(15)(B)] (2017).

Similarly the Foreign Affairs Manual (FAM) states that “[n]on-immigrant visas are for international travelers coming to the United States temporarily. . . for a wide variety of reasons, including tourism, business, medical treatment and certain types of temporary work.” 9 FAM 401.1-2 (2015).

The “[f]actors to be used in determining entitlement to Temporary Visitor Classification are . . .

(a) Have a residence in a foreign country, which [the applicant] do not intend to abandon;

(b) Intend to enter the United States for a period of specifically limited [temporary] duration; and

(c) Seek admission for the sole purpose of engaging in legitimate activities relating to business or pleasure. . .” 9 FAM 402.2-2(B)(U) a-b (2015).

Residence:

The term “residence” is defined in INA 101(a)(33) as the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.” 9 FAM 402.2-2(C)(U) (2015).

Temporary Period of Stay:

The FAM states that “[a]lthough “temporary” is not specifically defined by either statute or regulation, it generally signifies a limited period of stay. The fact that the period of stay in a given case may exceed six months or a year is not in itself controlling, provided that . . .[the reviewer is] . . . satisfied that the intended stay actually has a time limitation and is not indefinite in nature.” Additionally, “[t]he period of time projected for the visit must be consistent with the stated purpose of the trip. The applicant must establish with reasonable certainty that departure from the United States will take place upon completion of the temporary visit. 9 FAM 402.2-2(D) (U) a-b (2015) (emphasis added).

Legitimate Activities Related to Business:

“Engaging in business contemplated for B1 Visa classification generally entails business activities other than the performance of skilled or unskilled labor.” 9 FAM 402.2-5(A) (U) a (2015) The applicant must show that she possesses adequate funds to avoid having to obtain unlawful employment.” See 9 FAM 41.31 N4.2 (2005).

Among the permitted business activities applicants may travel on a B1 Visa if they have litigation in the United States. See 9 FAM 402.2-5(B) (U) (4) (“Aliens should be classified B1 visitors for business, if otherwise eligible, if they are traveling to the United States to: . . . Litigate . . .”)

Litigation can include attending depositions, testifying at a trial, meeting with your attorneys or other reasons related to a case of which you are part in the United States.

For more information about traveling to the US to litigate or for business call or text at 305-570-2208 or email us at eayala@ayalalawpa.com

Vivir en los Estados Unidos Invirtiendo en Bienes Raices en Miami

By | Blog, Business, E-Visa, EB-5, Green Card, immigration, Immigration Law, Lawful permanent resident, LPR, News & Announcements, Noticias, Real Estate, Residencia | No Comments

 

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En mi experiencia, muchas personas en todo el mundo quieren vivir en los Estados Unidos (EE.UU.) para disfrutar de la seguridad y la estabilidad que su sistema político proporciona. En América del Sur, por ejemplo, la mayoría de las personas con alto patrimonio saben que Estados Unidos nunca tendrá alguien en el poder que amenace las estructuras democráticas del país. La fuerte estructura constitucional y democrática del país no lo permite. Es decir, por lo menos esa es la imagen de los Estados Unidos en el extranjero.

RESIDENCIA PERMANENTE A TRAVÉS DE BIENES RAÍCES

Pero incluso si hay un ambiente político seguro, los extranjeros no quieren entrar en inversiones riesgosas que pueden poner en peligro sus ahorros de toda la vida. En este sentido, inversion en bienes raíces ofrece lo mejor de ambos mundos: una vida legal en los EE.UU. y una inversión segura. A través de un programa llamado EB-5 se puede obtener la residencia permanente haciendo una inversión de $500,000 en un proyecto aprobado por el gobierno.

Muchos de estos proyectos son desarrollos inmobiliarios que, ante el difícil proceso de obtener préstamos de prestamistas tradicionales, se convierten en fondos privados.

Ahora, siempre se puede invertir en su propio proyecto de bienes raíces. Dependiendo del área, la inversión podría ser $500,000 o $1,000,000. Se tiene que crear 10 empleos en los Estados Unidos para calificar a este programa. No estamos hablando de edificios sofisticados. Pequeños proyectos pueden calificar siempre y cuando cumplan con la cantidad requerida y que se creen los 10 puestos de trabajo.

VISAS DE NEGOCIO A TRAVÉS DE BIENES RAÍCES

Para aquellos que no necesariamente quieran invertir grandes cantidades de dinero, hay otras inversiones en bienes raíces que requieren una menor cantidad de dinero y que pueden calificar para obtener una visa para vivir en los EE.UU. con su familia.

En Ayala Law PA nos hemos asociado con prestamistas privados que otorgan a los pequeños inversionistas hasta el 50% del capital necesario para comprar bienes raíces comerciales o residenciales. Inversiones de $250,000 pueden calificar para esta opción y son la mejor alternativa para aquellos que no tienen las cantidades más grandes de dinero en efectivo necesario para obtener la residencia permanente.

COMBINANDO LA OPORTUNIDAD EN EL MERCADO Y SUS METAS PERSONALES

La mayoría de los expertos coinciden en que ha habido un aumento en la oferta en el mercado de condominios del sur de la Florida, lo cual es muy oportuno para los que tienen la liquidez para comprar. Muchas veces el mejor negociador es el efectivo en mano. Si al mismo tiempo, usted es un extranjero que está buscando la estabilidad de una residencia permanente o una visa de negocios, este es el momento oportuno para reunirse con un abogado de inmigración y bienes raíces para empezar a hacer un poco de planificación al respecto.

También es importante señalar que los EE.UU. no ha aumentado los montos mínimos requeridos para una inversión EB-5 desde la creación del programa en 1990. Desde ese punto de vista, aquellos que tienen el dinero disponible y planean invertir en los EE.UU. deberían hacerlo antes de cualquier posible aumento en los requisitos de capital.

Mi experiencia es que cuanto antes mejor cuando se trata de inmigración e inversión. La mayoría de las veces la planificación migratoria adecuada junto con un buen plan de negocios es la mejor oportunidad para tener éxito tanto en inmigración como en la inversión.

Para mayor información llame para programar una cita al 305-570-2208 or envie un correo a eayala@ayalalawpa.com

Are you Defenseless Against Federal Agents’ Abuses at Airports?

By | Admissibility, Admission, Blog, CBP, Civil Actions, Green Card, immigration, Immigration Law, Lawful permanent resident, News & Announcements, Visa | No Comments

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There are several reports that Federal employees at ports of entry are taking measures that are breaching constitutionally protected rights.

In the most recent, remarkable case, a US born citizen and a NASA-engineer employee was detained by Customs and Border Protection (CBP) for no particular reason. This scientist posted the incident on his Facebook account and described how he was sent to a room for a long period of time and asked not only for his cell phone but the password to access the information in it.

The scientist, having concerns about the sensitive nature of the information in his government provided cell phone, initially refused to give out his password. Intimidated by the persistence of CBP and being held already for a long time, he gave his phone access code to the agents.

Situations like this are not uncommon nowadays.This is just one of many remarkable stories at ports of entry which is making CBP agents’ well-earned reputation as abusive, rude individuals increase dramatically under the new administration.

The truth of the matter is that normally you do not have to give out your cell phone password. The Supreme Court has decided that police cannot search peoples’ phones inside the country without a warrant because they contain abundant personal information. The Court has not yet decided on a case about phone searches at the border or ports of entry.However, the Supreme Court in 1976 and 2004 decided that people’s Fourth Amendment privacy rights are less when entering the US because the government has to protect its borders.

If you are a US citizen or a Green Card holder (and you do not give out your password) they eventually have to let you in. It will be just a bad experience. But if you are coming to the US with a non-immigrant visa (as a tourist for instance) you are not only facing the hassle (and a bad time)but also a potential denial of entry.

Is there any remedy?

Yes. If you manage to make it through and feel that your rights have been violated, there are certain things you can do. The Supreme Court has held that “a violation of the Fourth Amendment protection against unreasonable searches and seizures by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct.” Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389, 91 S. Ct. 1999, 2001 (1971).

Damages can include “humiliation, embarrassment, and mental suffering as a result of the [federal] agents’ unlawful conduct” Id. at 390. Attorneys fees are also a possibility in some cases.

For more information about “Bivens” actions call or text at 305-570-2208 or email us at eayala@ayalalawpa.com

 

 

 

 

LIVING IN THE US BY INVESTING IN MIAMI REAL ESTATE

By | Blog, Business, Green Card, immigration, News & Announcements, Real Estate, Visa | No Comments

From my experience, a lot of people worldwide want to live in the United States (US) and enjoy the security and stability that its political system provides, even in the Trump era. In South America for instance, most high net worth individuals know that the US will never have a demagogue in power that threatens the democratic structures. A strong constitutional and democratic structure do not allow it. That is, at the very least the image of the US abroad.

GREEN CARD THROUGH REAL ESTATE

But even if there is a safe political environment, foreigners do not want to enter risky investments that can jeopardize their lifetime savings or capital. In this sense, real estate provides the best of both worlds in terms of living legally in the US and making a safe investment. Through a program called EB-5 you can obtain a green card by making a $500,000 investment in a project approved by the US government.

A lot of these projects are real estate developments that, facing the difficult process to obtain loans from traditional lenders, turn into private funds.

You can always take matters into your own hands and invest in your own real estate project. Depending on the area, the investment could be $500,000 or $1,000,000. You will have to create 10 US jobs to qualify. We are not talking about sophisticated high-rises. Small developments may qualify as long as you meet the required amount and create 10 jobs.

BUSINESS VISA THROUGH REAL ESTATE

For those who do not necessarily want to invest large sums of money, there are other smaller investments in the real estate that may qualify you for a visa to live in the US safely with your family.

At Ayala Law PA we have partnered with small private lenders who give smaller investors up to 50% of the capital needed to purchase commercial or residential real estate. Investments of $250,000 can qualify you for this option and are a better alternative for those that do not have the larger sums of cash required to obtain a green card.

COMBINING MARKET OPPORTUNITY AND YOUR PERSONAL GOALS

Most experts agree that there has been an increase in supply in the condo market in South Florida that makes it very opportune for those with buying power to purchase. Often times the best dealmaker is cash in hand. If at the same time, you are a foreigner who is looking for the stability of a green card or a business visa, then get together with an immigration and real estate attorney to start doing some planning.

It is also important to note that the US has not raised the minimum amounts required for an EB-5 investment since the creation of the program in 1990. From that standpoint, those who have the cash available and plan to invest in the US should do it before any potential raise in capital requirements.

My experience is that the earlier the better when it comes to immigration and investment. Most of the time adequate immigration planning along with a good business plan is the best chance to be successful.

For more information contact us at eayala@ayalalawpa.com or call or text at 305-570-2208

Sobre la política “Pies secos, Pies Mojados”

By | Admission, Blog, Cuban Adjustment, Green Card, Immigration Law, News & Announcements, Noticias, Residencia | No Comments

La Ley de Ajuste Cubano (CAA, por sus siglas en ingles) es una ley que otorga a los ciudadanos cubanos, a sus cónyuges y a sus hijos la posibilidad de obtener la residencia permanente si han estado presentes físicamente en los Estados Unidos durante al menos un año y si han sido admitidos legalmente para ingresar al país (por ejemplo, que hayan ingresado con una visa) o con un parole.

Una ley es un acto del congreso, no del presidente. [1] La famosa frase “Pies secos, Pies mojados” no refleja una ley, sino una política; es una manera que tiene el Presidente de los Estados Unidos de hacer cumplir la ley. De hecho, las palabras “Pies secos, Pies mojados” no están escritas en ningún código o documento oficial. Es una manera coloquial de describir ciertas pautas de la política emitida por el Poder Ejecutivo sobre cómo aplicar la Ley de Ajuste Cubano.

Así, cuando Obama cancela el “Pies secos, Pies mojados” no está cancelando ninguna ley, y por lo tanto no está cancelando una palabra de la Ley de Ajuste Cubano.

Lo que Obama hizo no afecta a todos los cubanos que emigran a los Estados Unidos con una visa o un parole. Afecta a los cubanos que intentan entrar ilegalmente en los Estados Unidos (a través de la costa de los Estados Unidos o a través de las fronteras).

¿Por qué Obama hizo esto? Parece haber tres razones importantes. Primero, acabar con la inmigración ilegal cubana. En segundo lugar, el cambio desincentiva a los involucrados en la trata de personas cubanas y a los inmigrantes que se atreven a correr ese riesgo. Y por último lugar, un acuerdo con el gobierno cubano (en un esfuerzo por normalizar las relaciones con Cuba) para que Cuba reciba de vuelta a los criminales cubanos que Estados Unidos remueve constantemente y que Cuba se rehúsa a recibir. Terminar la política de “Pies secos, Pies mojados” aparentemente era parte del acuerdo.

Para obtener más información sobre este tema, puede programar una consulta en: https://www.lawayala.com/product/consultation/

[1]También hay leyes realizadas por las legislaturas estatales, pero como la Ley de Inmigración es una ley federal, sólo puede ser dictaminada por el Congreso de los EE.UU.

On Wet Foot; Dry Foot

By | Admission, Blog, Cuban Adjustment, Green Card, Immigration Law, Lawful permanent resident, News & Announcements | No Comments

The Cuban adjustment Act (CAA) is a law that gives Cubans citizens, their spouses and children the possibility of getting a green card if they have been physically present in the US for at least one year and have been admitted or paroled (i.e.: entered with a visa or a parole document).

A law is an act of congress, not the president.[1] The famous “Wet Foot; Dry Foot” phrase reflects not a law but a policy; a way to enforce a law by the president of the United States. In fact the words “Wet Foot; Dry Foot” are not written in any code or official document. It is a colloquial way to describe certain policy guidelines issued by the executive branch as to how to apply the CAA law.

Thus, when Obama cancels the Wet Foot; Dry Foot policy, he is not cancelling any law, and therefore he is not cancelling one word in the CAA.

What Obama did does not affect at all Cubans immigrating to the US with a visa or a parole document. It does affect those Cubans trying to enter the US illegally (through the US coast or through the borders).

Why did Obama do this? There appears to be three important reasons. First, end illegal Cuban immigration. Second, the change makes a disincentive for those involved in Cuban human trafficking and those immigrants who dare to take such a risk. And three, an agreement with the Cuban government (in an effort to normalize relationships with Cuba) for Cuba to take back Cuban criminal immigrants the US constantly removes and that Cuba refuses to take. Ending the Wet Foot; Dry Foot was apparently part of the deal.

For more information about this topic you can schedule a consultation at: https://www.lawayala.com/product/consultation/

 

[1] There are also state laws that are made but state legislatures but since immigration law is federal law, immigration laws are only made by the US Congress.

Republicans Amnesia

By | Blog, News & Announcements | No Comments

In the wake of the pretty sound Obama’s defeat of Romney in the 2012 election, the Republican National Committee (RNC) published what it called the “most comprehensive post-election review” ever made after an electoral loss. “Growth & Opportunity Project” (or Autopsy Report) they labeled it.

You can find it here: http://goproject.gop.com/rnc_growth_opportunity_book_2013.pdf

 The 100-page report was actually a well-done autopsy of the RNC after the loss. It reached out to consultants, volunteers, field staff, minorities, women, and Hispanics to come out with a clearer picture of why they loss.

“Republicans have lost the popular vote in five of the last six presidential elections” they said. “Public perception of the Party is at record lows. Young voters are increasingly rolling their eyes at what the Party represents, and many minorities wrongly think that Republicans do not like them or want them in the country. When someone rolls eyes at us, they are not likely to open their ears to us” (my emphasis).

“The Republican Party needs to stop talking to itself. We have become expert in how to provide ideological reinforcement to like-minded people, but devastatingly we have lost the ability to be persuasive with, or welcoming to, those who do not agree with us on every issue.”

The report further acknowledges that “America Looks Different”. “If Hispanic Americans perceive that a GOP[1] nominee or candidate does not want them in the United States (i.e. self-deportation), they will not pay attention to our next sentence.”

The report is fascinating and addresses other more logistical issues like campaign financing, data analysis, polling and ground game operations among others.

It was in the wake of the 2012 presidential race loss that the famous “gang of eight” was created. The bipartisan effort to pass immigration reform of which Marco Rubio was a member (and leader) but then, later, during the 2016 presidential primary campaign decided that he was not really a member. It was almost like he was embarrassed to have been a member of such noble cause—a bipartisan effort to help immigrants come out of the shadows. The gang of eight was nothing but the result of this widespread feeling among republicans that we ought to do something. There was a strong sense that the GOP had to be more inclusive. It was a direct effect of the Autopsy report.

You read the Autopsy Report and you almost feel excited about it. For those of us who love free market and small government it seemed like good news. The Republican Party finally acknowledged that the world has changed. That the US population has changed and that people think differently than they used to 50 years ago. They feel different about gays and lesbians. They feel different about Latinos and immigrants in general. They feel different about religion. They feel different about marihuana. They feel different about the role of the US abroad.

Since the Autopsy report, about 4 million immigrants have become US citizens. This does not include children born to immigrants that are turning 18 years old and are eligible to vote now and who likely disagree with the idea of deporting 11 million people, building a wall, calling us rapist, banning entire religions, profiling and the like.

What happen to the Autopsy report? What are the outcomes of the Autopsy report?

I do not know. What I know is the fact that we have had an election cycle with a candidate who disparages minorities in ways never seen in the past. A candidate who even takes pride at disparaging people. A candidate with such a scarce knowledge of policy, economics and, most importantly, the US constitution.

And you might think: it is a pity that he won the primaries, there were better choices. No! The runner up was a Cuban-Canadian-American who wanted to patrol Muslim’s neighborhoods, to build a wall, and to deport eleven million people that came here just like his father. The third place finisher is no better either. Besides acting like a child in debates, he admittedly says that he would deport his own father if he came today.

And the story does not end with the sudden appearance of characters like Donald Trump. The saddest part of the story is that, instead of putting country first, constitution first, morals first, values first; the majority of the republican establishment has decided to embrace Trump because with him “they could push their agenda” better than with Hillary Clinton. So it is agenda first, Country second.

I was no fan of Romney but God I wish he was the nominee now. His then self-deportation plan (which was an outrage then) seems now like a warm hug to immigrants next to Trump’s xenophobia. He at least has had the courage to say, I do not support Trump’s hateful rhetoric. That, I admire. More republicans should do that instead of being worried about partisan interests or re-elections. A political party is nothing if the country is not first. If the very constitutional values upon which it was founded are disregarded.

What happened to the Autopsy Report then? What happen to the Great Republican Party? I do not know. I tend to think that they suffer from amnesia. That they are ill and need a doctor. But like the Autopsy report says “we are rolling the eyes at you GOP” With Trump’s hate leading the way, it is hard to hear your next sentence.

We do not wrongly think that Republicans do not like us or want us in the country like you say in your report. We correctly and accurately think that. And until you go back to your autopsy report, listen to it, meditate it, and perhaps create a new Autopsy in the post Trump era, Latino’s, minorities, immigrants, will roll our eyes at you….

[1] GOP stands for Grand Old Party, the name how Republicans were called when they were founded.