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Immigration Laws Evolution to EB5 Visa Program: An Overview

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Immigration Laws Evolution to EB5 Visa Program: An Overview

Immigration Laws Evolution to EB5 Visa Program for U.S. : An Overview!!! 

Immigration Law for EB-5 Evolution and Development

The following provides an overview of how the U.S. Immigration Laws have evolved through the years to the EB-5 Immigrant Investors Program as we know today. This should provide Accredited Investors who are seeking U.S. Green Cards, a basic understanding of how the U.S. regulations have changed in order to keep up with the changing times. 

 

  • Immigration and Nationality Act (INA)
    • Some people believe that the U.S. was built on an environment where the basic principles of where to live or work controlled most of the citizens. Because of this, together with the continuous influx of immigrants over the years, the U.S. Government Immigration Law had to evolve. In 1952, Congress passed the Immigration and Nationality Act (the “INA”). This was perhaps the most significant legislation at that time, because it collected and codified many existing provisions and reorganized the structure of U.S Immigration Law. INA has been amended many times since, but it covered all the basic body of law related to Citizenship, Naturalization and Immigration
    • Under INA, employers had to comply with certain verification requirements as well as no discrimination provisions, especially when hiring a foreigner, in the hiring, recruiting and discharging process, whether these hires were categorized as Immigrants or Non-Immigrants. However, INA established a quota system for nationalities and regions and gave the government the power to deport or refuse entry to those engaged in “subversive” activities. Eventually, the INA established a preference system in determining which ethnic groups were desirable and placed great importance on labor qualifications. 
    • INA defined Three Types of Immigrants: Immigrants with special skills; Relatives of U.S. citizens who were exempt from quotas, and those to be admitted without restrictions (i.e. refugees). 
    • On the other hand, there were 79 classifications for the Non-Immigrants. Two of the most common classifications were: 
      • Class H-1B for those who were specialized in the fields of Science, Education, Engineering or Computer Programming; and  
      • Class H-2B for Temporary Workers who performed other kinds of labor or services.  

 

  • 1990 Immigration Act (IMMACT 90):  
    • In 1990, the EB-5 Immigrant Investor Category under the 1990 Immigration Act (the “IMMACT 90”), which amended the provisions of the Immigration and Nationality Act (the “INA”).  
    • IMMACT 90 was responsible for increasing the number of immigrants to legally enter the U.S. every year. As soon as IMMACT 90 was approved and enforced, an estimate of 700,000 immigrants entered the U.S. every year, an increase of over 500,000 from before. Also, while the IMMACT 90 preferred family members who were already in the U.S., it still granted over 50,000 diversity visas to those who came from countries where there were few who availed themselves of the privileges of the Act. About 40,000 visas allowing for permanent employment and 65,000 temporary employment visas were subsequently approved. 
    • Under this Act, the following visas were created: EB-1, EB-2, EB-3, EB-4, and EB-5. 
      • EB-1 for the Priority Workers; 
      • EB-2 for the Professionals who had Advanced Degrees or had Exceptional Abilities; 
      • EB-3 for the Skilled/Professional Workers; 
      • EB-4 for the Special Immigrants; and  
      • EB-5 for the Immigrant Investor Program.  

 

  • Immigration and Naturalization Service (Legacy INS)
    • Subsequently, the former Immigration and Naturalization Service (the “legacy INS”) released four decisions in 1998, which became precedents on the application of the EB-5 category. The legacy INS provisions were made to retroactively apply to investors who applied under the former rules in good faith. This caused confusion among those who were subject to the 2 years requirement on conditional residency, but received the status of “Conditional Permanent” that was followed under the old rules. As a result, many EB-5 Investors were subject to removal proceedings, because the legacy INS did not want their conditions to be removed. 
    • In the years that followed, several court decisions embodied the principle that the new standards cannot be applied retroactively in relation to the approval of EB-5 Petitions. 
    • On March 1, 2003, the INS ceased to exist and all of its services were transferred to the new U.S. Citizenship and Immigration Services (USCIS) agency. 

 

  • 21st Century Dept. of Justice Appropriations Authorization Act:  
    • In 2002, Congress enacted the 21st Century Dept. of Justice Appropriations Authorization Act as Public Law Number 107 to 273 of 116 Stat 1758 (the “2002 Act”) which provided, among other things:
    • EB-5 Investors who meet the normal EB-5 requirements can be given unconditional green card status; 
    • EB-5 Investors who have not yet met the requirements have two more years for the completion of their investments as well as to demonstrate job creation and the receipt of credit for the investments made and the jobs created or saved. 

 

  • United States Citizenship and Immigration Services (USCIS):  
    • Later on, in January 2005, the USCIS issued a memo that provided for a new Investor and Regional Center Unit (the “IRCU”), which has the responsibility of overseeing the EB-5 program. 
    • The INS was previously seen to be ineffective; thus the 2002 Homeland Security Act was signed into law on November 25, 2002 which resulted in the following: 
    • Transfer of the INS functions to the Department of Homeland Security; 
    • Enforcement of Immigration functions forwarded to US Immigration and Customs Enforcement (ICE); and 
    • Service functions of Immigration separately placed with the USCIS. 
    • The USCIS is one of the components of the US Department of Homeland Security (the “DHS”). One of its functions include much of the administrative work of the former INS and responsibility for the promotion of national security, elimination of backlogs of immigration cases as well as customer service improvement. 

 

  • Immigrant Investor Program
    • Mean while, Immigrant Investor Program. (the “Pilot Program”), a special section of EB-5 Visas, was created under Sec. 610, Public Law 102-395 in October 6, 1992 and currently extends to September 30, 2018. This law provides, in summary, that the investments are affiliated with economic units known as the “Regional Center”. 
    • The objective of the EB-5 Immigrant Investor Program was mainly to stimulate the U.S. economy by creating jobs and increase capital investments brought into the U.S. by foreign investors. Particular to this Program was the preference it gave to EB-5 Visas by the USCIS setting aside areas for Regional Centers where investments can be brought in to enhance economic growth. 

 

  • EB-5 Immigration Law Development
    • It is clear that the Immigration Law related to EB-5 Visas has made improvements since the traditional program was first introduced. The U.S. government wants to ensure the preservation of the EB-5 Visa Program through greater clarity of the Investment Security and Program Structure, so that the Investment Program can create a win-win proposition for the U.S. Economy and EB-5 Immigrant Investors
    • In the light of the current U.S. economic situation, in which the credit market is restricted and the unemployment rate is high, the EB-5 Visa Program provides a promising opportunity for growth and redevelopment across America. For these reasons, the U.S. Congress and the USCIS are actively engaged in the process and work diligently to continuously modify EB-5 regulations to ensure that the EB-5 Visa Program meets its Goals, Expectations and the Needs of its Beneficiaries. 

 

  • Note: Information provided herewith, is for educational purpose of Investment based Immigrant investors to help make informed investment decision.

 

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