Category

Visa

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

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

The E Visa and the benefits for your spouse and children

By | Blog, E-Visa, National Visa Center, Visa | No Comments

Many immigrants wanting to live in the United States do not have a family member that can petition for them or an employer that can sponsor them. Many of these immigrants, have an urgent need to seek an alternative country, one with more political stability, in which they can do business and safely care for their families. They do not have the luxury of the sometimes years it takes to go through a family or work petition.

The E-2 visa provides this opportunity. It is a “fast” process that allows the main E visa holder to do business if he/she invests a “substantial amount of capital in a US business”. What is a substantial amount of capital? It varies from business to business but in some instances investments of $100,000 may qualify you for an E visa. Additionally you have to be a citizen of a country that has a treaty with the US. For a list of eligible countries check this link: https://travel.state.gov/content/visas/en/fees/treaty.html

One of the amazing benefits of the E-2 visa is that your spouse and under 21 years old children can also come with you. Moreover your spouse is eligible to apply for a work authorization and can work in anything in the US. The main E visa beneficiary work will be restricted to the E-business.

Unlike other visas in which the expertise and training of the applicant has to be related to the nature of the business that he/she will run in the US; this is not the case in the E-2 visa. As long as the capital investment is substantial and you meet the other requirements, the investment can be done by the husband or the wife interchangeably. In this context we always recommend that the spouse with the ability to earn more be the dependent.

Let’s put an example. Imagine a couple in which husband is an international banker, and wife is an architect. International banker husband will most likely have more earning opportunities in the U.S. and it will be difficult for the wife to receive the proper licensing to practice architecture. The wife can invest in a franchise, and enjoy the expertise and support that franchisors provide. Her international banker, husband, can apply for a work authorization (as an E-2 dependent) then develop his banker career in the US.

For more information on E-2 visas, the process and its benefits, please contacts us at: 205-570-2208 or email at questions@ayalalawpa.com.