Immigrant investors should be special immigrants again
 

Immigrant investors should be special immigrants again

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Immigrant investors should be special immigrants again Immigrant investors should be special immigrants again Document Transcript

  • Immigrant Investors Began as Special Immigrants in 1965/1966: The Current EB-5 Investor Visa Was a Mistake Made in 1990, Congress Should Re-codify Immigrant Investors as Special ImmigrantsAfter doing more in-depth research into the creation and development of theImmigrant Investor path towards a green-card, I have come to the realization that itis misclassified or at the very least the statute is inadequate to the underlyingdesired outcome.INS Created the Immigrant Investor Classification1The "investor visa" was created originally in 1966, by INS through regulationutilizing the Attorney Generals broad authority under INA § 103 [8 USC § 1103]by construing and interpreting INA § 203 [8 USC § 1153] (a)(8)s "other qualifiedimmigrants" who could demonstrate that they did not require a labor certificationfrom the Secretary of Labor. It was not termed as a visa classification but rather asa "labor certification exemption". It seems that everybody needed some guidanceon who the phrase "other qualified immigrants" actually applied to. Who exactlywere these "other qualified immigrants" that did not need a labor certification?These visas were allocated under INA § 203 (a)(8) but issued as a "specialimmigrant" class found in INA § 101(a)(27) [8 USC § 1101 (a)(27)]. TheImmigration and Nationality Act Amendments of 1965 (Public Law 89-236, Sec. 8(a)) renamed nonquota immigrants as special immigrants in INA § 101(a)(27).These special immigrants were eligible for visas and investors were among theseimmigrants but defined in the regulation, not the statute. Legacy INS promulgated8 CFR § 212.8(b)(4) in the Federal Register in 1966. This immigration benefit firstappeared in the Code of Federal Regulation in 1967. This visa was codifiedtwenty-four years later and made statutory by Congress in 1990 (IMMACT90), atINA § 203(b)(5) as employment-based 5th preference: EB-5.It would be great if Congress would shift the Immigrant Investors into anew subparagraph (N?) to INA § 101 (a)(27) and also exempt thosevisas within INA § 201(b)(1)(A) along with returning residents andformer USCs.1 See: The Case To Reform EB-5 at http://www.ilw.com/articles/2011,1014-whalen.shtm andhttp://www.slideshare.net/BigJoe5/a-survey-of-the-immigrant-investor-visa-1966-2011-june-27-2011-jw Page 1 of 13
  • For Easy Reference:Former INA §§ 203 (a)(3), (a)(6), (a)(8) [8 USC §§ 1153 (a)(3), (a)(6), (a)(8)](1965) provided, in part:(a) Aliens who are subject to the numerical limitations specified in section 1151(a)of this title shall be allotted visas or their conditional entry authorized, as the casemay be, as follows:.....(3) Visas shall next be made available, in a number not to exceed 10 per centum ofthe number specified in section 1151(a)(1) or (2) of this title, to qualifiedimmigrants who are members of the professions, or who because of theirexceptional ability in the sciences, or the arts will substantially benefit thenational economy, cultural interests, or welfare of the United States...... (6) Visas shall next be made available, in a number not to exceed 10 per centum ofthe number specified in section 1151(a)(1) or (2) of this title, to qualifiedimmigrants who are capable of performing specified skilled or unskilled labor,not of a temporary or seasonable nature, for which a shortage of employable andwilling persons exists in the United States......(8) Visas authorized in any fiscal year, less those required for issuance to theclasses specified in paragraphs (1) through (6) and less the number of conditionalentries and visas made available pursuant to paragraph (7), shall be made availableto other qualified immigrants strictly in the chronological order in which theyqualify. Waiting lists of applicants shall be maintained in accordance withregulations prescribed by the Secretary of State. No immigrant visa shall be issuedto a nonpreference immigrant under this paragraph, or to an immigrant with apreference under paragraph (3) or (6) of this subsection, until the consular officeris in receipt of a determination made by the Secretary of Labor pursuant to theprovisions of section 1182(a)(14) of this title. [Emphasis added.]INA § 201 Worldwide Level of Immigration.(b) Aliens Not Subject to Direct Numerical Limitations. - Aliens described in thissubsection, who are not subject to the worldwide levels or numerical limitations ofsubsection (a), are as follows:(1) Page 2 of 13
  • (A) Special immigrants described in subparagraph (A) or (B) of section 101(a)(27) . (B) Aliens who are admitted under section 207 or whose status is adjusted under section 209 . (C) Aliens whose status is adjusted to permanent residence under section 210 , or 245A . (D) Aliens whose removal is canceled under section 240A(a) . (E) Aliens provided permanent resident status under section 249 .(2) (A) (i) Immediate relatives. - For purposes of this subsection, the term "immediate relatives" means the children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at least 21 years of age. In the case of an alien who was the spouse of a citizen of the United States 6/ and was not legally separated from the citizen at the time of the citizens death, the alien (and each child of the alien) shall be considered, for purposes of this subsection, to remain an immediate relative after the date of the citizens death but only if the spouse files a petition under section 204(a)(1)(A)(ii) within 2 years after such date and only until the date the spouse remarries. 3/ For purposes of this clause, an alien who has filed a petition under clause (iii) or (iv) of section 204(a)(1)(A) of this Act remains an immediate relative in the event that the United States citizen spouse or parent loses United States citizenship on account of the abuse. (ii) Aliens admitted under section 211(a) on the basis of a prior issuance of a visa to their accompanying parent who is such an immediate relative. (B) Aliens born to an alien lawfully admitted for permanent residence during a temporary visit abroad. Page 3 of 13
  • INA § 101 [8 U.S.C. 1101] Definitions.(a) As used in this Act-(27) The term "special immigrant" means- (A) an immigrant, lawfully admitted for permanent residence, who is returning from a temporary visit abroad; (SB-1 Returning Residents) (B) an immigrant who was a citizen of the United States and may, under section 324(a) or 327 of title III, apply for reacquisition of citizenship; (Former USC seeking to reacquire USC and file an N-600 or very rarely an N-400—They can more easily take the Oath abroad before a Consular Officer.) (C) an immigrant, and the immigrants spouse and children if accompanying or following to join the immigrant, who- (Special Immigrant Religious Worker and Family) (i) for at least 2 years immediately preceding the time of application for admission, has been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States; (ii) seeks to enter the United States- (I) solely for the purpose of carrying on the vocation of a minister of that religious denomination, (II) before September 30, 2012, 25/ 4bbb/ 4b/ 4bb/ in order to work for the organization at the request of the organization in a professional capacity in a religious vocation or occupation, or (III) before September 30, 2012, 25/ 4bbb/ 4b/ 4bb/ in order to work for the organization (or for a bona fide organization which is affiliated with the religious denomination and is exempt from taxation as an organization described in section 501(c)(3) of the Internal Revenue Code of 1986) at the request of the organization in a religious vocation or occupation; and Page 4 of 13
  • (iii) has been carrying on such vocation, professional work, or other work continuously for at least the 2-year period described in clause (I);(D) an immigrant who is an employee, or an honorably retired formeremployee, of the United States Government abroad, or of the AmericanInstitute in Taiwan, and who has performed faithful service for a total offifteen years, or more, and his accompanying spouse and children: Provided,That the principal officer of a Foreign Service establishment (or, in the caseof the American Institute in Taiwan, the Director thereof), in his discretion,shall have recommended the granting of special immigrant status to suchalien in exceptional circumstances and the Secretary of State approves suchrecommendation and finds that it is in the national interest to grant suchstatus;(E) an immigrant, and his accompanying spouse and children, who is or hasbeen an employee of the Panama Canal Company or Canal ZoneGovernment before the date on which the Panama Canal Treaty of 1977 (asdescribed in section 3 (a)(1) of the Panama Canal Act of 1979) enters intoforce, who was resident in the Canal Zone on the effective date of theexchange of instruments of ratification of such Treaty, and who hasperformed faithful service as such an employee for one year or more;(F) an immigrant, and his accompanying spouse and children, who is aPanamanian national and (i) who, before the date on which such PanamaCanal Treaty of 1977 enters into force, has been honorably retired fromUnited States Government employment in the Canal Zone with a total of 15years or more of faithful service, or (ii) who on the date on which suchTreaty enters into force, has been employed by the United StatesGovernment in the Canal Zone with a total of 15 years or more of faithfulservice and who subsequently is honorably retired from such employment orcontinues to be employed by the United States Government in an area of theformer Canal Zone;(G) an immigrant, and his accompanying spouse and children, who was anemployee of the Panama Canal Company or Canal Zone government on theeffective date of the exchange of instruments of ratification of such PanamaCanal Treaty of 1977, who has performed faithful service for five years ormore as such an employee, and whose personal safety, or the personal safety Page 5 of 13
  • of whose spouse or children, as a direct result of such Treaty, is reasonablyplaced in danger because of the special nature of any of that employment;(H) an immigrant, and his accompanying spouse and children, who- (SpecialImmigrant Physicians) (i) has graduated from a medical school or has qualified to practice medicine in a foreign state, (ii) was fully and permanently licensed to practice medicine in a State on January 9, 1978, and was practicing medicine in a State on that date, (iii) entered the United States as a nonimmigrant under subsection (a)(15)(H) or (a)(15)(J) before January 10, 1978, and ( iv) has been continuously present in the United States in the practice or study of medicine since the date of such entry;(I) (Offspring and/or Widows of Foreign Semi-Diplomats, InternationalOrganization Employees, and NATO Personnel who are not covered bySec. 13, or the Retirees themselves and/or Family) (i) an immigrant who is the unmarried son or daughter of an officer or employee, or of a former officer or employee, of an international organization described in paragraph (15)(G)(i), and who (I) while maintaining the status of a nonimmigrant under paragraph (15)(G)(iv) or paragraph (15)(N), has resided and been physically present in the United States for periods totaling at least one-half of the seven years before the date of application for a visa or for adjustment of status to a status under t his subparagraph and for a period or periods aggregating at least seven years between the ages of five and 21 years, and (II) applies for a visa or adjustment of status under this subparagraph no later than his twenty- fifth birthday or six months after the date of the enactment of the Immigration Technical Corrections Act of 1988, whichever is later; Page 6 of 13
  • (ii) an immigrant who is the surviving spouse of a deceased officer oremployee of such an international organization, and who (I) while maintaining the status of a nonimmigrant under paragraph (15)(G)(iv) or paragraph (15)(N), has resided and been physically present in the United States for periods totaling at least one-half of the seven years before the date of application for a visa or for adjustment of status to a status under this subparagraph and for a period or periods aggregating at least 15 years before the date of the death of such officer or employee, and (II) files a petition for status under this subparagraph no later than six months after the date of such death or six months after the date of the enactment of the Immigration Technical Corrections Act of 1988, whichever is later;(iii) an immigrant who is a retired officer or employee of such aninternational organization, and who (I) while maintaining the status of a nonimmigrant under paragraph (15)(G)(iv), has resided and been physically present in the United States for periods totaling at least one-half of the seven years before the date of application for a visa or for adjustment of status to a status under this subparagraph and for a period or periods aggregating at least 15 years before the date of the officer or employees retirement from any such international organization, and (II) files a petition for status under this subparagraph no later than six months after the date of such retirement or six months after the date of enactment of the Immigration and Nationality Technical Corrections Act of 1994, whichever is later; or(iv) an immigrant who is the spouse of a retired officer or employeeaccorded the status of special immigrant under clause (iii),accompanying or following to join such retired officer or employee asa member of his immediate family; Page 7 of 13
  • (J) 4c/ an immigrant who is present in the United States-- (SpecialImmigrant Juveniles) (i) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrants parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law; 24/ (ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the aliens best interest to be returned to the aliens or parents previous country of nationality or country of last habitual residence; and (iii) in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status, 24/ except that-- (I) no juvenile court has jurisdiction to determine the custody status or placement of an alien in the custody of the Secretary of Health and Human Services unless the Secretary of Health and Human Services specifically consents to such jurisdiction; 24/ and (II) no natural parent or prior adoptive parent of any alien provided special immigrant status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act; 4d/(K) an immigrant who has served honorably on active duty in the ArmedForces of the United States after October 15, 1978, and after original lawfulenlistment outside the United States (under a treaty or agreement in effect onthe date of the enactment of this subparagraph) for a period or periodsaggregating- (Foreign Members of the U.S. Armed Forces who can’tsimply file an N-400, didn’t know about filing an N-400, or chooses notto seek naturalization at that time.) Page 8 of 13
  • (i) 12 years and who, if separated from such service, was never separated except under honorable conditions, or (ii) 6 years, in the case of an immigrant who is on active duty at the time of seeking special immigrant status under this subparagraph and who has reenlisted to incur a total active duty service obligation of at least 12 years, and the spouse or child of any such immigrant if accompanying or following to join the immigrant, but only if the executive department under which the immigrant serves or served recommends the granting of special immigrant status to the immigrant; 4dd/ 4d/4d/ (L) an immigrant who would be described in clause (i), (ii), (iii), or (iv)of subparagraph (I) if any reference in such a clause— (Certain AdditionalNATO civilian employees) (i) to an international organization described in paragraph (15)(G)(i) were treated as a reference to the North Atlantic Treaty Organization (NATO); (ii) to a nonimmigrant under paragraph (15)(G)(iv) were treated as a reference to a nonimmigrant classifiable under NATO-6 (as a member of a civilian component accompanying a force entering in accordance with the provisions of the NATO Status-of-Forces Agreement, a member of a civilian component attached to or employed by an Allied Headquarters under the `Protocol on the Status of International Military Headquarters set up pursuant to the North Atlantic Treaty, or as a dependent); and (iii) to the Immigration Technical Corrections Act of 1988 or to the Immigration and Nationality Technical Corrections Act of 1994 were a reference to the American Competitiveness and Workforce Improvement Act of 1998 4dd/(M) 4dd/ subject to the numerical limitations of section 203(b)(4) , animmigrant who seeks to enter the United States to work as a broadcaster inthe United States for the International Broadcasting Bureau of theBroadcasting Board of Governors, or for a grantee of the Broadcasting Page 9 of 13
  • Board of Governors, and the immigrants accompanying spouse and children. (BBG International Broadcasters and immediate family)FN 4b Section 101(a)(27)(C)(ii) was amended by section 1 of Public Law 105-54 , dated October 6, 1997, by striking "1997" each place it appears and inserting"2000". This change was effective October 6, 1997.FN 4bb Section 2 of Public Law 106-409 , dated November 1, 2000, amendedsection 101(a)(27)(C)(ii) by striking "2000" and inserting "2003". Change waseffective October 1, 2000. Section 1 of Public Law 108-99 , dated October 15, 2003, amended section101(a)(27)(C)(ii) by striking "2003" and inserting "2008". Change was effectiveOctober 1, 2003.FN 4bbb Section 2 of Public Law 110-391 , dated October 10, 2008, amended section 101(a)(27)(C)(ii)(II) and (III) by striking October 1, 2008, both places such term appears and inserting March 6, 2009, Section 1 of Public Law 111-9 , dated March 20, 2009, amended section 101(a)(27)(C)(ii)(II) and (III) by striking March 6, 2009, each place such term appears and inserting September 30, 2009FN 4c Section 101(a)(27)(J) was amended in its entirety by section 113 of Public Law 105-119 , dated November 26, 1997.FN 4d Section 421(a) , Public Law 105-277, under Division B – Emergency Supplemental Appropriations, Title IV - American Competitiveness and Workforce Improvement Act (ACWIA), amended section 101(a)(27) by: (1) striking "or" at the end of subparagraph (J); (2) striking the period at the end of subparagraph (K) and inserting "; or" and by (3) adding at the end, a new subparagraph (L).FN 4dd Section 1(a) of Public Law 106-536 , dated November 22, 2000, amended section 101(a)(27) by: Page 10 of 13
  • (1) striking "or" at the end of subparagraph (K), (2) striking the period at the end of subparagraph (L), and by (3) adding a new subparagraph (M).FN 24 Section 235(d)(1) of Public Law 110-457, dated December 23, 2008, made several amendments to section 101(a)(27)(J) of the Immigration and Nationality Act. Expeditious Adjudication - All applications for special immigrant status under section 101(a)(27)(J) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)(J)) shall be adjudicated by the Secretary of Homeland Security not later than 180 days after the date on which the application is filed.FN 25 Section 568(a)(1) of Public Law 111-83, dated October 28, 2009, amended section 101(a)(27)(C)(ii)(II) and (III) by changing the date "September 30, 2009" to "September 30, 2012" (2) STUDY AND PLAN- Not later than 180 days after October 28, 2009, the Director of United States Citizenship and Immigration Services shall submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives that includes - (A) the results of a study conducted under the supervision of the Director to evaluate the Special Immigrant Nonminister Religious Worker Program to identify the risks of fraud and noncompliance by program participants; and (B) a detailed plan that describes the actions to be taken by United States Citizenship and Immigration Services to improve the integrity of the program. (3) PROGRESS REPORT- Not later than 240 days after the submission of the report under paragraph (2), the Director of United States Citizenship and Immigration Services shall submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives that describes the progress made in implementing the plan described in clause (a)(2)(B) of this section. Page 11 of 13
  • Further Reference:The United States Code is divided into 50 titles (listed below), which deal withbroad, logically organized areas of legislation. Titles may optionally be dividedinto subtitles, parts, subparts, chapters, and subchapters. All titles have sections(represented by a §), as their basic coherent units, though sections are often dividedinto (from largest to smallest) subsections, paragraphs, subparagraphs, clauses,subclauses, items, and subitems. Congress, by convention, names a particularsubdivision of a section according to its largest element. For example, "subsection(c)(3)(B)(iv)" is not a subsection but a clause, namely clause (iv) of subparagraph(B) of paragraph (3) of subsection (c); if the identity of the subsection andparagraph were clear from the context, one would refer to the clause as"subparagraph (B)(iv)."Not all titles use the same series of subdivisions above the section level, and theymay arrange them in different order. For example, in Title 26 (the tax code), theorder of subdivision runs:  Title  (Subtitle) o Chapter o (Subchapter)  Part  (Subpart)  Section  (Subsection)  Paragraph  (Subparagraph)  Clause  (Subclause)In Title 38 (Veterans Benefits) the order runs Title - Part - Chapter - Subchapter -Section. Put another way, the Title is always the largest division of the Code, andthe section the smallest (except for subsections, paragraphs, clauses, etc.), butintermediate levels vary in both number and sequence from Title to Title.The word "title" in this context is roughly akin to a printed "volume," althoughmany of the larger titles span multiple volumes. Similarly, no particular size orlength is associated with other subdivisions; a section might run several pages inprint, or just a sentence or two. Some subdivisions within particular titles acquire Page 12 of 13
  • meaning of their own; for example, its common for lawyers to refer to a "Chapter11 bankruptcy" or a "Subchapter S corporation" (often shortened to "Scorporation").According to one legal style manual, a sample citation would be "Privacy Act of1974, 5 U.S.C. § 552a (2006)", read aloud as "Title five, United States Code,section five fifty-two A" or simply "five USC five fifty-two A."SEE: http://en.wikipedia.org/wiki/United_States_Code Page 13 of 13