GREEN CARDS: LAWFUL PERMANENT RESIDENTS
A. Investor Green Cards: EB-5, Alien Entrepreneurs
The EB-5 Immigrant Investor (also called the “Alien Entrepreneur”) category of green cards was established to encourage foreign investment in the United States, boost the U.S. economy, and create jobs. The minimum investment required is US$1 million, although the amount is reduced to US$500,000 if the investment is made in a targeted employment area. A targeted employment area is a rural area or an area which has experienced unemployment at levels that are at least 150 percent of the U.S. national average. The invested funds must be at risk in the enterprise for at least two years. After making the investment, the investor files an application with a government agency called U.S. Citizenship and Immigration Services (“USCIS”). Upon approval, the investor and certain qualifying family members, are admitted to the U.S. under conditional green card status for a two-year period. An unconditional green card is granted only after the filing of a second application within two years of issuance of the initial conditional status.
There are two types of EB-5 visas, the regular EB-5 visa and the Immigrant Investor Pilot Program EB-5. The nature of the investment varies depending on the type of EB-5 visa. The regular or “direct investment” EB-5 requires an investment in a commercial enterprise that is controlled by the investor. Under the Immigrant Investor Pilot Program, the investment in the enterprise may be arranged through a “regional center,” which is set up to allow the pooling of EB-5 investments. The two-step application process from conditional green card to unconditional green card applies to both types of EB-5 visas; however, the documents submitted to USCIS vary considerably between the two types.
1. The Regular or Direct Investment EB-5
To obtain an investor green card through the regular route, the investor must place the money at risk in a new commercial enterprise and be actively involved in controlling and directing the invested funds, or at least have a policy-making role. The funds must be come from a legal source from which they must be fully traceable. A gift or loan from a family member may qualify. Also, a loan that is secured by collateral other than the investment itself, such as the investor’s home, may qualify.
The funds cannot be invested in passive investments, such as securities. However, an investment in an investment management firm, real estate management, or investment firm could qualify for the EB-5 visa if the target entity was able to hire 10 full-time workers within the first two years, and the investor was actively involved in managing the business. Thus, purchasing a home with the required funds would not qualify for the EB-5 visa, but buying several properties to renovate and rent as a source of income, or establishing and operating a business that purchases and renovates real properties for resale might qualify, as long as the other requirements are met.
In general, the investment must be made in a new commercial enterprise, which means a for-profit business established after November 29, 1990, although an investment in a business established before that date can qualify if it results in the reorganization, restructure, or expansion of the business. There is little guidance available as to what qualifies as a restructured or reorganized business, but an expanded business is one in which the investment capital will result in a 40% increase in the net worth of the business or in the number of employees. It is still necessary to create at least 10 new jobs.
Several investors (including non-EB-5 investors) can pool their funds in a commercial enterprise as long as each EB-5 investor qualifies separately in terms of the investment amount. The required investment funds cannot be loaned to the enterprise, although non-EB-5 investors can certainly provide loans to the enterprise. The jobs created by the combined investment will be allocated among each of the EB-5 investors to determine if each investor has met the minimum of 10 full-time jobs.
2. The Immigrant Investor Pilot Program EB-5
The Immigrant Investor Pilot Program is a temporary program that was started in 1993 to allow 3,000 immigrant investment visas to be set aside each year for investors in certain designated regional centers. A regional center is an investment vehicle that has been authorized by USCIS to allow EB-5 investors to obtain a green card after investing a minimum of $500,000 (for regional centers in targeted employment areas) into the endeavor. The current law authorizing this program will expire on September 30, 2015. While it is likely that Congress will renew the legislation, there is no guarantee that it will happen.
The regional center option is desirable for an investor who is not interested in running a business in the U.S. or who lacks the expertise to start and manage a business. The regional center pools the funds of several investors plus other funds from non-green card pursuing investors to execute a business plan. The investors in a regional center need play only a nominal role in managing the business. The investor does not need to show that his invested funds directly resulted in 10 jobs being created; instead, he is permitted to demonstrate, through an economist’s model, the number of direct and indirect jobs that were created by the funds from all investors in the regional center enterprise. The number of direct and indirect jobs created by the regional center is then divided by the number of EB-5 investors to show how many direct and indirect jobs were created by each EB-5 investment.
There are now over two hundred such regional centers established throughout the United States and many different business models for these enterprises. Industries in which regional centers have invested vary from hotels to dairies to wine grape growing operations. Some regional center operators are relative novices; others have a decade or more of experience in establishing and managing their enterprises. A list of approved regional centers can be found at: www.uscis.gov/eb-5centers.
Any investor considering an investment in a regional center project should do careful due-diligence and choose a familiar business model and regional center with which the investor feels comfortable. Also, as suggested below, each investor should seek the advice of both a competent immigration lawyer and an experienced business lawyer or advisor.
3. Issues specific to EB-5 Visas
a. Find a Good Lawyer and Business Advisor
Visa issues are complex, but EB-5 visa issues are especially difficult to understand. Preparing a visa application is such a complex task that only a limited number of immigration lawyers regularly advise clients about EB-5 visas and assist them in filing EB-5 immigrant visa applications. For this reason, it is vital that each investor retains a qualified and knowledgeable immigration lawyer to assist in this process. Depending upon the investor’s business acumen, he may also wish to retain a business lawyer or advisor to help evaluate investment options, particularly when considering an investment in a regional center.
Lastly, many regional centers charge a substantial syndication fee or commission to investors (often US$30,000 to US$50,000 in addition to the US$500,000 investment) and may also offer a finder’s fee of US$15,000 or more to a lawyer or other business advisor who refers a client to the regional center. The investor should make sure that the lawyer or advisor fully discloses to her client the receipt of such a finder’s fee, as such an arrangement could constitute a conflict of interest. Some immigration lawyers, with full disclosure to the client, may receive the finder’s fee from the regional center but then apply it fully towards her legal fees.
b. Tracing and Documenting The Investor’s Source of Funds
One of the biggest concerns for potential EB-5 investors, especially those from China, is being able to show a complete paper trail from the original legal source of funds to their bank account from which the funds will be transferred to the commercial enterprise or regional center. If the funds are transferred from a bank account in China, the investor must be able to show that the funds came from a lawful source into that account. For example, if the funds were earned through employment income, the investor should be able to show current or prior employment in a position which paid a salary sufficient to accumulate the funds in the account—this may require providing letters from an employer as well as income tax returns. If the funds are from the sale of an asset, such as a family-owned residence, farm, or stock in a company, the investor must show prior ownership of the property or stock, and subsequent sale resulting in sufficient proceeds.
If the funds came from another family member (for example, as a loan or gift), the investor must show that the family member had sufficient earned income to accumulate the funds and provide documentation of an appropriate loan agreement or gift letter from the family member. A gift or unsecured loan from a distant relative or other person will be looked upon with suspicion and scrutinized very closely. In one case, my Chinese client was a well-regarded professor who wanted to qualify for an EB-5 visa using a gift of US$500,000 from a female friend whose family owned a large Chinese company. I explained to my client that the proposed investment raised several issues. First, because the gift was not from a close relative, the transaction itself would receive even more scrutiny than usual. Second, the female friend would have to show that she had acquired the funds through legal means, for example, either through the sale of her shares in the company, or the accumulation of dividends. Since she was unable to document the lawful source of her funds, we were not able to proceed with this proposed investment.
c. Understanding the Investment
Another important issue around EB-5 visas concerns the safety of the investment. Since the invested funds must be at risk, there is a very real risk that they will be lost (in part or in total), and possibly the loss may happen before the investor has received the permanent green card. There is also the possibility that the regional center will not achieve its business objectives to create the necessary number of jobs.
An investor who is managing his own enterprise, rather than investing in a regional center, will have a much better sense of how the money is being used. This includes knowing whether the investment will create the required number of jobs, if the invested funds will be available during the entire conditional period, and whether, ultimately, if any of the invested funds will be recovered. In contrast, an investment in a regional center project involves trusting in the integrity and management capabilities of its managers.
One of my clients (before she came to me) lost her entire EB-5 investment when the managers of a now defunct regional center (several of whom were former high officials in the U.S. government) absconded with my client’s and other EB-5 investor’s funds. Since the funds had not been properly invested to create the jobs, she also did not receive her green card, not even on a conditional basis. Other EB-5 investors have successfully received their conditional green cards, only to have the regional center investment fail before they were able to receive their permanent green cards. In these types of situations investors not only lose their investments, but also their green cards. In one case, before the USCIS issued additional regulations, my client had invested in a regional center, but her application to remove the condition and obtain a permanent green card was delayed because of litigation involving all EB-5 regional center cases which lasted for over 5 years. In her case, she was able to get her investment back, and gave up her green card. However, many in her situation had to either abandon their investments or wait until the litigation was settled and the permanent green cards were eventually issued. At the very least, an investor should expect that the regional center investment may not yield any or all of the promised returns on the investment.
Finally, since most regional center investments require that the investor keep the funds invested for a period of time in excess of the 2 year conditional period, often for 5, 6 years or more, the investor who seeks to obtain a green card by investing in a regional center project should expect that the invested funds may not be available for some time. We understand that some regional center investors are cashing in their investments at a sharp discount after they receive their permanent green cards. Generally, this is because they need their funds for some other reason and can’t wait the contracted period, or believe that they can do a better job of investing their funds. For these reasons, it is very important that each investor carefully reviews the proposed regional center project with his legal and business advisors to understand the terms of the deal fully.
d. The Regional Center EB-5 is a Pilot Program
The Immigrant Investor Pilot Program is not yet permanent law and it is possible that the U.S. Congress will not renew the legislation that authorizes the program, sometime in the future. The current legislation expires on September 30, 2015. As a result, it is possible that the program will end at some point after the investor has invested in the regional center but before the conditional green card is issued, or even after it is issued, but before the permanent green card is issued. While, in such circumstances, USCIS would likely pass regulations to deal with pending EB-5 cases, there is no guarantee that they will do this in the future, or that the legislation itself will be renewed. We have seen that every time the legislation has been slated to expire, USCIS has generally expedited the processing of EB-5 cases in the pipeline. Still, there is no guarantee that the agency would act in the same manner in the future, or that the legislation itself will be renewed. For this reason, it is imperative that the contract governing an investment in a regional center allows the investor to liquidate the investment, without additional penalties, should Congress permit the regional center pilot program to lapse. In such an event, the investor may not be able to satisfy the legal requirements to obtain the permanent green card, even though it is through no fault of the investor.
e. The Priority Date System
As explained below, in greater detail, the immigrant visa system is based upon a priority system under which only 10,000 visas each year are available to all EB-5 investors, including the 3,000 visas a year reserved for regional center investors. There is a further allocation according to place of birth. Since over 85% of EB-5s are currently being issued to Chinese-born investors, it is likely that in a given year, the total number of EB-5 investors available to Chinese-born investors and their families may run out before the end of the fiscal year (September 30 of each year). In such a situation, the investor and family members will not be issued their conditional green cards until additional numbers become available in the new fiscal year on October 1. While there may be some future legislation passed by the U.S. Congress to deal with this issue, no fix is currently in place and so each investor must take this factor into consideration in planning for immigrant visa.
B. The Multinational Executive Green Card
An executive or manager of a Chinese company which has a qualifying affiliate in the United States may qualify for a green card to serve as an executive or manager for the U.S. affiliate.
1. Basic Requirements
The basic requirements are as follows:
a. The Chinese and the U.S. company are qualifying affiliates – this means that one is the parent or subsidiary of the other (at least 50% ownership) or that they are sister companies, each of which is at least 50% owned by a third parent company. If the Chinese and U.S. companies are owned by a common group of shareholders (in which no one shareholders owns a majority), the common shareholder group must own both companies in roughly the same percentage of ownership.
b. The U.S. affiliate must have been engaged in business for at least one year and must be able to support the executive or managerial position both financially and operationally.
c. The intending immigrant must have served as an executive or manager for the Chinese affiliate for at least one year (in a full-time position) prior to applying for the green card status.
d. The intending immigrant must be going to the U.S. to serve in a full-time capacity as an executive or manager of the U.S. affiliate.
2. Issues Particular to Multinational Executive Green Cards
There are a number of issues that are specific to Multinational Executive or Manager green cards. First, it is important to remember that only someone who has served as a manager or executive of the foreign company and will be serving as a manager or executive of the U.S. affiliate may qualify for the green card. Next, the position abroad must have been a full-time position, although the position could have involved serving a number of related affiliates in a part-time capacity that, combined, equate to a full-time position.
In situations where the manager or executive owns a substantial interest in the foreign company, it is advantageous for the U.S. affiliate to be structured as a direct subsidiary of the Chinese company, rather than having the manager or executive own a direct interest in the U.S. affiliate. While both options are considered to be qualifying affiliations, a green card petition by a person who owns a substantial interest in the U.S. will generally receive more scrutiny by USCIS than one filed by a manager or executive who does not own a substantial interest in a U.S. company, and could be denied.
Lastly, even though the law requires that the U.S. entity must have been doing business for at least one year, the U.S. entity need not have been a qualifying affiliate for the entire year. Consequently, a Chinese company can purchase an existing U.S. enterprise in order to obtain a qualified affiliate for green card purposes. This could gain valuable time where the manager or executive cannot wait for an entire year to apply for the green card. Note, however, that any time an investor purchases an existing enterprise, there is also the danger of buying its liabilities.
C. The Employment-Based Preference System
The path to a green card is a three-step process that involves (1) the adjudication of an immigrant visa petition filed by the individual’s employer or, as with an EB-5 investor visa, the individual herself; (2) waiting for immigrant visa availability; and (3) the adjudication of an immigrant visa adjustment of status application by USCIS (if the individual is inside the U.S.) or an immigrant visa application by the Department of State (if the individual is abroad).
Employment based immigrant visas are divided into five preference categories, EB-1, EB-2, EB-3, EB-4, and EB-5. Preference categories are based around a numerical limit that determines the availability and waiting period of each preference category. Many preference visa categories are oversubscribed. This means that the system is backlogged, that there is more demand than there are an available number of green cards, and applicants often have to wait several years to be issued a visa.
Every fiscal year, approximately 140,000 employment-based immigrant visas are made available to qualified applicants. Visas are issued in the chronological order in which the petitions were filed until the annual numerical limit for each preference category is reached.
The filing date of a petition becomes the applicant’s priority date – although for any visa category which first requires a PERM labor certification, the priority date is established by the filing date of the application for the PERM labor certification. Immigrant visas cannot be issued until an applicant's priority date is reached. In certain heavily oversubscribed categories, there may be a waiting period of several years before a priority date is reached. Applicants can check the Visa Bulletin published on the Department of State’s website, which is updated monthly, for the latest priority dates.
D. EB-1 Extraordinary Ability Green Cards
This category is for individuals who have “extraordinary ability” in the sciences, arts, education, business, or athletics. Individuals with extraordinary ability constitute the small percentage of people who have risen to the very top of their field. Such extraordinary ability must be demonstrated by sustained national or international acclaim.
1. Basic Requirements
To demonstrate extraordinary ability, an applicant must submit evidence to show that she has received a major internationally-recognized award, such as the Nobel Peace Prize, or submit evidence that demonstrates that she has met at least three of the following ten achievements:
a. Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field.
b. Membership in associations that require outstanding achievements of their members.
c. Published material about the applicant in professional or trade publications or other major media.
d. Participation, either individually or on a panel, as a judge of the work of others in the field.
e. Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance.
f. Authorship of articles in professional or trade publications or other major media.
g. Display of the applicant’s work at artistic exhibitions or showcases.
h. Performing a leading or critical role for organizations with a distinguished reputation.
i. Receipt of a high salary or other significantly high compensation in relation to others in the field.
j. Commercial successes in the performing arts, as shown by box office receipts or audio and video sales.
2. Issues Particular to Extraordinary Ability Green Cards
This category of green cards is reserved for those of who can show that they belong to the “best of the best”—that they are part of the elite in their field, and can demonstrate such fact by evidence of sustained recognition or acclaim, either nationally or internationally. It is often helpful to aim to define the applicant’s field of activity more narrowly to more easily show that the applicant is one of a few to have reached the very top of her field. Since the sustained acclaim can be earned nationally, the applicant can be totally unknown in the U.S. as long as she has gained the necessary recognition in China. While the regulations suggest that anyone who meets the evidentiary requirements can qualify for this type of green card, the immigration service is now interpreting the regulations to evaluate the application in two stages. First, has the applicant provided the appropriate evidence? Second, does the evidence taken as a whole show that the applicant has gained national or international acclaim as being one of a small percent at the top of her field?
This category belongs to the First Employment-Based Preference group. Because of this, there is currently no wait to apply for and obtain a green card, beyond the administrative processing time. Further, under this category, the applicant can apply through the “self-petition” process. This is beneficial because it does not require an employer willing to petition for the applicant, a requirement for most employment-based immigrant visas. While the applicant must be coming to the U.S. to continue working in her field of distinction, the applicant does not need to be working in a position that requires someone with extraordinary ability.
E. EB-1 Outstanding Researcher or Professor Green Cards
1. Basic Requirements
This category is for professors and researchers who are recognized internationally as outstanding in an academic field. To qualify as an outstanding researcher or professor, the applicant must submit evidence that demonstrates at least two of the following six categories of achievements:
a. Receipt of major prizes or awards for outstanding achievement in the academic field.
b. Membership in associations which require outstanding achievements of their members.
c. Published material in professional publications written by others about the applicant’s work.
d. Participation, either individually or on a panel, as the judge of the work of others in the same field.
e. The applicant’s original scientific or scholarly research contributions to the academic field.
f. Authorship of books or articles in scholarly journals with international circulation in the field.
In addition, a professor or researcher must have at least three years of experience teaching or researching in the academic field and a job offer from a U.S. college or university or a private employer for a permanent position. A “permanent” position means either a tenured (or tenure-track) teaching position or a research position for a term of indefinite duration at which the employee will have an expectation of continued employment (unless there is good cause for your termination). If the job offer is from a private employer, his future employer must demonstrate that it employs at least three full-time researchers and that it has achieved documented accomplishments in an academic field.
2. Basic Requirements Issues Particular to Outstanding Researcher or Professor Green Cards
This category requires that the professor or researcher show that the field of expertise is an academic field of study offered at a university. Also, as with the extraordinary ability class, it is often helpful to show that the applicant gained his expertise in a narrow subfield to show more easily that he is one of the best in that subfield. While the regulations suggest that anyone who meets the evidentiary requirements can qualify for this type of green card, the immigration service is now interpreting the regulations to evaluate the application in two stages. First, has the applicant provided the appropriate evidence? Second, does the evidence taken as a whole show that the applicant is recognized internationally as outstanding in his academic field?
As this category also belongs to the First Employment-Based Preference group, there is currently no wait to apply for and obtain a green card, beyond the administrative processing time. Unlike the process for those with extraordinary ability, the outstanding researcher or professor category requires that an employer files the petition for the applicant.
F. EB-2 National Interest Waiver Green Cards for Applicants with Exceptional Ability or Professionals with an Advanced Degree
This category is for aliens of “exceptional ability” in the sciences, arts or business and for members of the professions holding an “advanced degree.” Those who also qualify for a National Interest Waiver need not first obtain a PERM labor certification before they can apply for the green card. The National Interest Waiver is an exemption from the labor certification requirement which is available if the intended employer can demonstrate that the applicant’s occupation is deemed to be in the national interest and that the applicant can meet a three pronged test described below.
1. What is a National Interest Waiver
Typically Employment-Based Second Preference green cards require the applicant to obtain a “PERM labor certification” (described below) from the U.S. Department of Labor that confirms that there are no U.S. workers available to take a particular employment position. However, if, in addition to meeting either the Exceptional Ability or the Advanced Degree requirements, the applicant can demonstrate that she will greatly benefit the national interest she can receive a waiver from the requirement to obtain the PERM labor certification prior to filing the immigrant petition. The three-pronged national interest test requires a showing that the applicant’s:
a. Occupation is in an area of substantial intrinsic merit (such as improving healthcare).
b. Employment will benefit the nation as a whole rather than just a specific geographic region.
c. Ability to contribute to the national interest must be substantially greater than the majority of her colleagues such that it outweighs the national interest in protecting U.S. workers through the labor certification process.
2. Basic Requirements for Exceptional Ability
This category is for aliens of “exceptional ability” in the sciences, arts, or business. “Exceptional ability” means “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business,” as evidenced by at least three of the following six forms of evidence:
a. A degree from a college or university relating to her area of exceptional ability.
b. Letters from employers showing that the applicant has at least 10 years of full-time experience in the field.
c. A license to practice the profession or certification for a particular profession or occupation.
d. Evidence that the applicant has been paid a high salary or other exceptional compensation for services.
e. Evidence of her membership in professional associations.
f. Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
3. Basic Requirements for Professionals with Advanced Degrees
This category is for members of the professions holding an “advanced degree.” “Advanced degree” means any U.S. academic degree or foreign equivalent that is above a bachelor’s degree (e.g., a master’s degree or doctorate). A bachelor’s degree followed by at least 5 years of progressive experience in the specialty is deemed equivalent to a master’s degree. To be eligible for this category, the applicant must not only have an advanced degree, but her job also must require one.
4. Issues Particular to Advanced Degree Exceptional Ability Green Cards
The primary benefit of obtaining a National Interest Waiver lies in the time that it can save in the green card process given that the PERM labor certification process can take up to eleven months or more. This benefit is not as significant, however, for those hired by an academic institution after a competitive recruitment process. Through competitive recruitment, such an employer can process the applicant’s green card under a “special handling” process that allows them to short-cut the PERM labor certification process.
Importantly, an applicant who qualifies for the National Interest Waiver can self-petition, while all others in the Employment-Based Second Preference must have an employer to file their petition for them.
G. EB-2 and EB-3 PERM Labor Certification-Based Green Card
For all Third Preference Employment-based green cards, as well as Second Preference Employment-based green cards for which a National Interest Waiver is not available, the prospective employer must first obtain a Program Electronic Review Management (“PERM”) labor certification to test the labor market for availability of U.S. workers. The PERM labor certification process was established to prevent foreign workers from coming to the United States to displace existing or available U.S. workers, or otherwise having an adverse effect upon their wages and working conditions.
1. Basic Requirements
To obtain a PERM labor certification, an employer must first conduct a recruitment process to confirm that there are no U.S. workers (including U.S. citizens, green card holders, and certain other workers) who are minimally qualified, available, and willing to accept the position that the employer wants to offer the foreign worker. After completing the recruitment process, the employer must file a PERM labor certification application online. After the application is certified by the U.S. Department of Labor, the employer files an immigrant visa petition.
2. Preference Categories for PERM Labor Certification-Based Green Cards
The PERM labor certification is required for all Employment-Based Second and Third Preference green cards, except for those with a National Interest Waiver. The Second Preference category is reserved for persons who are members of the professions holding advanced degrees or for persons with exceptional ability in the arts, sciences, or business. The Third Preference category is reserved for professionals, skilled workers, and other workers. A “professional” for immigration purposes is someone who works in a position for which the Bachelor’s degree or higher is the usual minimum requirement for entry into the job. An applicant in an occupation who does not qualify for one of the non-PERM labor certification categories must first obtain an offer of employment and a PERM labor certification before being granted a green card to live and work in the U.S.
A Chinese professional who does not qualify for the National Interest Waiver and does not have an advanced degree, but who does have a baccalaureate degree plus five or more years of experience, may wish to ask his employer to file the petition under the Second Preference category. There is currently a long waiting period for those in the Second Preference group, but there is an even longer waiting period for individuals in the Third Preference group.
H. General Considerations
1. Adjustment of Status Versus Consular Processing
An applicant already living or working in the U.S. under a non-immigrant visa category may be able to obtain his green card while remaining in the U.S. through a process called “adjustment of status.” The other path to a green card requires that an application be filed for an immigrant visa and green card through the nearest U.S. embassy or consulate general abroad that carries out “consular processing” duties.
The applicant’s spouse (to whom the applicant must be married before getting his green card) and unmarried children under the age of twenty-one who are in the U.S. with the applicant can also adjust their status and receive a green card at the same time. Dependents still residing in the applicant’s home country may have to disregard their immigrant visa at a consulate outside of the U.S. (this is also called the “follow-to-join process”). An applicant who is living and working outside the U.S. must consular process with any qualifying dependents.
2. Is It a Good Idea to Get a Green Card?
a. Tax Considerations
A green card holder may be subject to taxation by the U.S. Internal Revenue Service on her global income. A non-permanent resident without a green card may be taxed on his global income only if he is deemed a U.S. tax resident. It is therefore very important to consult with a tax advisor before pursuing a green card to learn of any possible tax consequences.
b. Is the Green Card: Is It Really Permanent? How Does Abandonment Occur?
While it is called a “permanent” resident visa, the green card is only permanent as long as the holder can demonstrate a continuing intent to reside permanently in the U.S. A green card holder who does not both maintain a home in the United States and spend most of her time here may risk having the green card taken away by a Customs and Border Protection Officer (immigration officer) at the port of entry. Some people have tried to hold on to their green cards after they have returned to live in their home country, believing that they can keep their green card as long as they return to the U.S. once every six months, or even more frequently. However, many eventually lose their green cards in this manner, if an immigration officer determines that they have abandoned their U.S. permanent resident status.
c. Citizenship
Generally, a green card holder is eligible to seek U.S. citizenship through the naturalization process if he is at least eighteen years old, a person of good moral character, has held the green card for at least five years (or three years if married to a U.S. citizen for the 3 year period), and has been physically present in the U.S. for at least half of that period. One advantage of having U.S. citizenship is that it permits an individual to sponsor his parents, a spouse, and children to obtain their green cards. A U.S. citizen can become a voting member of her community in the U.S. Importantly, a U.S. citizen cannot be deported even after conviction of certain crimes that might otherwise result in the deportation of a non-U.S. citizen (including a green card holder).
d. Can the Investor Accomplish His or Her Goals and Objectives in the U.S. Without a Green Card?
An investor may be able to accomplish some of the objectives that he wants to pursue in the U.S. with a non-immigrant visa (described below) instead of a green card. For example, a green card is not required to live in the U.S. as a temporary visitor (B-2) who is able to support himself without working in the U.S. Also, one can enter as a business visitor (B-1) to promote a foreign company’s products, take orders, and otherwise meet with executives of the foreign company’s U.S. affiliate without a green card. Further, it is also possible to establish and manage a business in the United States, without a green card if the investor owns or is employed by an affiliate abroad (L-1). Other avenues for work visas include employment as a professional (H-1B), in a managerial or executive capacity (L-1A), or in a specialized knowledge capacity (L-1B) for a U.S.-based company, provided one meets the requirements for each category.
The EB-5 Immigrant Investor (also called the “Alien Entrepreneur”) category of green cards was established to encourage foreign investment in the United States, boost the U.S. economy, and create jobs. The minimum investment required is US$1 million, although the amount is reduced to US$500,000 if the investment is made in a targeted employment area. A targeted employment area is a rural area or an area which has experienced unemployment at levels that are at least 150 percent of the U.S. national average. The invested funds must be at risk in the enterprise for at least two years. After making the investment, the investor files an application with a government agency called U.S. Citizenship and Immigration Services (“USCIS”). Upon approval, the investor and certain qualifying family members, are admitted to the U.S. under conditional green card status for a two-year period. An unconditional green card is granted only after the filing of a second application within two years of issuance of the initial conditional status.
There are two types of EB-5 visas, the regular EB-5 visa and the Immigrant Investor Pilot Program EB-5. The nature of the investment varies depending on the type of EB-5 visa. The regular or “direct investment” EB-5 requires an investment in a commercial enterprise that is controlled by the investor. Under the Immigrant Investor Pilot Program, the investment in the enterprise may be arranged through a “regional center,” which is set up to allow the pooling of EB-5 investments. The two-step application process from conditional green card to unconditional green card applies to both types of EB-5 visas; however, the documents submitted to USCIS vary considerably between the two types.
1. The Regular or Direct Investment EB-5
To obtain an investor green card through the regular route, the investor must place the money at risk in a new commercial enterprise and be actively involved in controlling and directing the invested funds, or at least have a policy-making role. The funds must be come from a legal source from which they must be fully traceable. A gift or loan from a family member may qualify. Also, a loan that is secured by collateral other than the investment itself, such as the investor’s home, may qualify.
The funds cannot be invested in passive investments, such as securities. However, an investment in an investment management firm, real estate management, or investment firm could qualify for the EB-5 visa if the target entity was able to hire 10 full-time workers within the first two years, and the investor was actively involved in managing the business. Thus, purchasing a home with the required funds would not qualify for the EB-5 visa, but buying several properties to renovate and rent as a source of income, or establishing and operating a business that purchases and renovates real properties for resale might qualify, as long as the other requirements are met.
In general, the investment must be made in a new commercial enterprise, which means a for-profit business established after November 29, 1990, although an investment in a business established before that date can qualify if it results in the reorganization, restructure, or expansion of the business. There is little guidance available as to what qualifies as a restructured or reorganized business, but an expanded business is one in which the investment capital will result in a 40% increase in the net worth of the business or in the number of employees. It is still necessary to create at least 10 new jobs.
Several investors (including non-EB-5 investors) can pool their funds in a commercial enterprise as long as each EB-5 investor qualifies separately in terms of the investment amount. The required investment funds cannot be loaned to the enterprise, although non-EB-5 investors can certainly provide loans to the enterprise. The jobs created by the combined investment will be allocated among each of the EB-5 investors to determine if each investor has met the minimum of 10 full-time jobs.
2. The Immigrant Investor Pilot Program EB-5
The Immigrant Investor Pilot Program is a temporary program that was started in 1993 to allow 3,000 immigrant investment visas to be set aside each year for investors in certain designated regional centers. A regional center is an investment vehicle that has been authorized by USCIS to allow EB-5 investors to obtain a green card after investing a minimum of $500,000 (for regional centers in targeted employment areas) into the endeavor. The current law authorizing this program will expire on September 30, 2015. While it is likely that Congress will renew the legislation, there is no guarantee that it will happen.
The regional center option is desirable for an investor who is not interested in running a business in the U.S. or who lacks the expertise to start and manage a business. The regional center pools the funds of several investors plus other funds from non-green card pursuing investors to execute a business plan. The investors in a regional center need play only a nominal role in managing the business. The investor does not need to show that his invested funds directly resulted in 10 jobs being created; instead, he is permitted to demonstrate, through an economist’s model, the number of direct and indirect jobs that were created by the funds from all investors in the regional center enterprise. The number of direct and indirect jobs created by the regional center is then divided by the number of EB-5 investors to show how many direct and indirect jobs were created by each EB-5 investment.
There are now over two hundred such regional centers established throughout the United States and many different business models for these enterprises. Industries in which regional centers have invested vary from hotels to dairies to wine grape growing operations. Some regional center operators are relative novices; others have a decade or more of experience in establishing and managing their enterprises. A list of approved regional centers can be found at: www.uscis.gov/eb-5centers.
Any investor considering an investment in a regional center project should do careful due-diligence and choose a familiar business model and regional center with which the investor feels comfortable. Also, as suggested below, each investor should seek the advice of both a competent immigration lawyer and an experienced business lawyer or advisor.
3. Issues specific to EB-5 Visas
a. Find a Good Lawyer and Business Advisor
Visa issues are complex, but EB-5 visa issues are especially difficult to understand. Preparing a visa application is such a complex task that only a limited number of immigration lawyers regularly advise clients about EB-5 visas and assist them in filing EB-5 immigrant visa applications. For this reason, it is vital that each investor retains a qualified and knowledgeable immigration lawyer to assist in this process. Depending upon the investor’s business acumen, he may also wish to retain a business lawyer or advisor to help evaluate investment options, particularly when considering an investment in a regional center.
Lastly, many regional centers charge a substantial syndication fee or commission to investors (often US$30,000 to US$50,000 in addition to the US$500,000 investment) and may also offer a finder’s fee of US$15,000 or more to a lawyer or other business advisor who refers a client to the regional center. The investor should make sure that the lawyer or advisor fully discloses to her client the receipt of such a finder’s fee, as such an arrangement could constitute a conflict of interest. Some immigration lawyers, with full disclosure to the client, may receive the finder’s fee from the regional center but then apply it fully towards her legal fees.
b. Tracing and Documenting The Investor’s Source of Funds
One of the biggest concerns for potential EB-5 investors, especially those from China, is being able to show a complete paper trail from the original legal source of funds to their bank account from which the funds will be transferred to the commercial enterprise or regional center. If the funds are transferred from a bank account in China, the investor must be able to show that the funds came from a lawful source into that account. For example, if the funds were earned through employment income, the investor should be able to show current or prior employment in a position which paid a salary sufficient to accumulate the funds in the account—this may require providing letters from an employer as well as income tax returns. If the funds are from the sale of an asset, such as a family-owned residence, farm, or stock in a company, the investor must show prior ownership of the property or stock, and subsequent sale resulting in sufficient proceeds.
If the funds came from another family member (for example, as a loan or gift), the investor must show that the family member had sufficient earned income to accumulate the funds and provide documentation of an appropriate loan agreement or gift letter from the family member. A gift or unsecured loan from a distant relative or other person will be looked upon with suspicion and scrutinized very closely. In one case, my Chinese client was a well-regarded professor who wanted to qualify for an EB-5 visa using a gift of US$500,000 from a female friend whose family owned a large Chinese company. I explained to my client that the proposed investment raised several issues. First, because the gift was not from a close relative, the transaction itself would receive even more scrutiny than usual. Second, the female friend would have to show that she had acquired the funds through legal means, for example, either through the sale of her shares in the company, or the accumulation of dividends. Since she was unable to document the lawful source of her funds, we were not able to proceed with this proposed investment.
c. Understanding the Investment
Another important issue around EB-5 visas concerns the safety of the investment. Since the invested funds must be at risk, there is a very real risk that they will be lost (in part or in total), and possibly the loss may happen before the investor has received the permanent green card. There is also the possibility that the regional center will not achieve its business objectives to create the necessary number of jobs.
An investor who is managing his own enterprise, rather than investing in a regional center, will have a much better sense of how the money is being used. This includes knowing whether the investment will create the required number of jobs, if the invested funds will be available during the entire conditional period, and whether, ultimately, if any of the invested funds will be recovered. In contrast, an investment in a regional center project involves trusting in the integrity and management capabilities of its managers.
One of my clients (before she came to me) lost her entire EB-5 investment when the managers of a now defunct regional center (several of whom were former high officials in the U.S. government) absconded with my client’s and other EB-5 investor’s funds. Since the funds had not been properly invested to create the jobs, she also did not receive her green card, not even on a conditional basis. Other EB-5 investors have successfully received their conditional green cards, only to have the regional center investment fail before they were able to receive their permanent green cards. In these types of situations investors not only lose their investments, but also their green cards. In one case, before the USCIS issued additional regulations, my client had invested in a regional center, but her application to remove the condition and obtain a permanent green card was delayed because of litigation involving all EB-5 regional center cases which lasted for over 5 years. In her case, she was able to get her investment back, and gave up her green card. However, many in her situation had to either abandon their investments or wait until the litigation was settled and the permanent green cards were eventually issued. At the very least, an investor should expect that the regional center investment may not yield any or all of the promised returns on the investment.
Finally, since most regional center investments require that the investor keep the funds invested for a period of time in excess of the 2 year conditional period, often for 5, 6 years or more, the investor who seeks to obtain a green card by investing in a regional center project should expect that the invested funds may not be available for some time. We understand that some regional center investors are cashing in their investments at a sharp discount after they receive their permanent green cards. Generally, this is because they need their funds for some other reason and can’t wait the contracted period, or believe that they can do a better job of investing their funds. For these reasons, it is very important that each investor carefully reviews the proposed regional center project with his legal and business advisors to understand the terms of the deal fully.
d. The Regional Center EB-5 is a Pilot Program
The Immigrant Investor Pilot Program is not yet permanent law and it is possible that the U.S. Congress will not renew the legislation that authorizes the program, sometime in the future. The current legislation expires on September 30, 2015. As a result, it is possible that the program will end at some point after the investor has invested in the regional center but before the conditional green card is issued, or even after it is issued, but before the permanent green card is issued. While, in such circumstances, USCIS would likely pass regulations to deal with pending EB-5 cases, there is no guarantee that they will do this in the future, or that the legislation itself will be renewed. We have seen that every time the legislation has been slated to expire, USCIS has generally expedited the processing of EB-5 cases in the pipeline. Still, there is no guarantee that the agency would act in the same manner in the future, or that the legislation itself will be renewed. For this reason, it is imperative that the contract governing an investment in a regional center allows the investor to liquidate the investment, without additional penalties, should Congress permit the regional center pilot program to lapse. In such an event, the investor may not be able to satisfy the legal requirements to obtain the permanent green card, even though it is through no fault of the investor.
e. The Priority Date System
As explained below, in greater detail, the immigrant visa system is based upon a priority system under which only 10,000 visas each year are available to all EB-5 investors, including the 3,000 visas a year reserved for regional center investors. There is a further allocation according to place of birth. Since over 85% of EB-5s are currently being issued to Chinese-born investors, it is likely that in a given year, the total number of EB-5 investors available to Chinese-born investors and their families may run out before the end of the fiscal year (September 30 of each year). In such a situation, the investor and family members will not be issued their conditional green cards until additional numbers become available in the new fiscal year on October 1. While there may be some future legislation passed by the U.S. Congress to deal with this issue, no fix is currently in place and so each investor must take this factor into consideration in planning for immigrant visa.
B. The Multinational Executive Green Card
An executive or manager of a Chinese company which has a qualifying affiliate in the United States may qualify for a green card to serve as an executive or manager for the U.S. affiliate.
1. Basic Requirements
The basic requirements are as follows:
a. The Chinese and the U.S. company are qualifying affiliates – this means that one is the parent or subsidiary of the other (at least 50% ownership) or that they are sister companies, each of which is at least 50% owned by a third parent company. If the Chinese and U.S. companies are owned by a common group of shareholders (in which no one shareholders owns a majority), the common shareholder group must own both companies in roughly the same percentage of ownership.
b. The U.S. affiliate must have been engaged in business for at least one year and must be able to support the executive or managerial position both financially and operationally.
c. The intending immigrant must have served as an executive or manager for the Chinese affiliate for at least one year (in a full-time position) prior to applying for the green card status.
d. The intending immigrant must be going to the U.S. to serve in a full-time capacity as an executive or manager of the U.S. affiliate.
2. Issues Particular to Multinational Executive Green Cards
There are a number of issues that are specific to Multinational Executive or Manager green cards. First, it is important to remember that only someone who has served as a manager or executive of the foreign company and will be serving as a manager or executive of the U.S. affiliate may qualify for the green card. Next, the position abroad must have been a full-time position, although the position could have involved serving a number of related affiliates in a part-time capacity that, combined, equate to a full-time position.
In situations where the manager or executive owns a substantial interest in the foreign company, it is advantageous for the U.S. affiliate to be structured as a direct subsidiary of the Chinese company, rather than having the manager or executive own a direct interest in the U.S. affiliate. While both options are considered to be qualifying affiliations, a green card petition by a person who owns a substantial interest in the U.S. will generally receive more scrutiny by USCIS than one filed by a manager or executive who does not own a substantial interest in a U.S. company, and could be denied.
Lastly, even though the law requires that the U.S. entity must have been doing business for at least one year, the U.S. entity need not have been a qualifying affiliate for the entire year. Consequently, a Chinese company can purchase an existing U.S. enterprise in order to obtain a qualified affiliate for green card purposes. This could gain valuable time where the manager or executive cannot wait for an entire year to apply for the green card. Note, however, that any time an investor purchases an existing enterprise, there is also the danger of buying its liabilities.
C. The Employment-Based Preference System
The path to a green card is a three-step process that involves (1) the adjudication of an immigrant visa petition filed by the individual’s employer or, as with an EB-5 investor visa, the individual herself; (2) waiting for immigrant visa availability; and (3) the adjudication of an immigrant visa adjustment of status application by USCIS (if the individual is inside the U.S.) or an immigrant visa application by the Department of State (if the individual is abroad).
Employment based immigrant visas are divided into five preference categories, EB-1, EB-2, EB-3, EB-4, and EB-5. Preference categories are based around a numerical limit that determines the availability and waiting period of each preference category. Many preference visa categories are oversubscribed. This means that the system is backlogged, that there is more demand than there are an available number of green cards, and applicants often have to wait several years to be issued a visa.
Every fiscal year, approximately 140,000 employment-based immigrant visas are made available to qualified applicants. Visas are issued in the chronological order in which the petitions were filed until the annual numerical limit for each preference category is reached.
The filing date of a petition becomes the applicant’s priority date – although for any visa category which first requires a PERM labor certification, the priority date is established by the filing date of the application for the PERM labor certification. Immigrant visas cannot be issued until an applicant's priority date is reached. In certain heavily oversubscribed categories, there may be a waiting period of several years before a priority date is reached. Applicants can check the Visa Bulletin published on the Department of State’s website, which is updated monthly, for the latest priority dates.
D. EB-1 Extraordinary Ability Green Cards
This category is for individuals who have “extraordinary ability” in the sciences, arts, education, business, or athletics. Individuals with extraordinary ability constitute the small percentage of people who have risen to the very top of their field. Such extraordinary ability must be demonstrated by sustained national or international acclaim.
1. Basic Requirements
To demonstrate extraordinary ability, an applicant must submit evidence to show that she has received a major internationally-recognized award, such as the Nobel Peace Prize, or submit evidence that demonstrates that she has met at least three of the following ten achievements:
a. Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field.
b. Membership in associations that require outstanding achievements of their members.
c. Published material about the applicant in professional or trade publications or other major media.
d. Participation, either individually or on a panel, as a judge of the work of others in the field.
e. Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance.
f. Authorship of articles in professional or trade publications or other major media.
g. Display of the applicant’s work at artistic exhibitions or showcases.
h. Performing a leading or critical role for organizations with a distinguished reputation.
i. Receipt of a high salary or other significantly high compensation in relation to others in the field.
j. Commercial successes in the performing arts, as shown by box office receipts or audio and video sales.
2. Issues Particular to Extraordinary Ability Green Cards
This category of green cards is reserved for those of who can show that they belong to the “best of the best”—that they are part of the elite in their field, and can demonstrate such fact by evidence of sustained recognition or acclaim, either nationally or internationally. It is often helpful to aim to define the applicant’s field of activity more narrowly to more easily show that the applicant is one of a few to have reached the very top of her field. Since the sustained acclaim can be earned nationally, the applicant can be totally unknown in the U.S. as long as she has gained the necessary recognition in China. While the regulations suggest that anyone who meets the evidentiary requirements can qualify for this type of green card, the immigration service is now interpreting the regulations to evaluate the application in two stages. First, has the applicant provided the appropriate evidence? Second, does the evidence taken as a whole show that the applicant has gained national or international acclaim as being one of a small percent at the top of her field?
This category belongs to the First Employment-Based Preference group. Because of this, there is currently no wait to apply for and obtain a green card, beyond the administrative processing time. Further, under this category, the applicant can apply through the “self-petition” process. This is beneficial because it does not require an employer willing to petition for the applicant, a requirement for most employment-based immigrant visas. While the applicant must be coming to the U.S. to continue working in her field of distinction, the applicant does not need to be working in a position that requires someone with extraordinary ability.
E. EB-1 Outstanding Researcher or Professor Green Cards
1. Basic Requirements
This category is for professors and researchers who are recognized internationally as outstanding in an academic field. To qualify as an outstanding researcher or professor, the applicant must submit evidence that demonstrates at least two of the following six categories of achievements:
a. Receipt of major prizes or awards for outstanding achievement in the academic field.
b. Membership in associations which require outstanding achievements of their members.
c. Published material in professional publications written by others about the applicant’s work.
d. Participation, either individually or on a panel, as the judge of the work of others in the same field.
e. The applicant’s original scientific or scholarly research contributions to the academic field.
f. Authorship of books or articles in scholarly journals with international circulation in the field.
In addition, a professor or researcher must have at least three years of experience teaching or researching in the academic field and a job offer from a U.S. college or university or a private employer for a permanent position. A “permanent” position means either a tenured (or tenure-track) teaching position or a research position for a term of indefinite duration at which the employee will have an expectation of continued employment (unless there is good cause for your termination). If the job offer is from a private employer, his future employer must demonstrate that it employs at least three full-time researchers and that it has achieved documented accomplishments in an academic field.
2. Basic Requirements Issues Particular to Outstanding Researcher or Professor Green Cards
This category requires that the professor or researcher show that the field of expertise is an academic field of study offered at a university. Also, as with the extraordinary ability class, it is often helpful to show that the applicant gained his expertise in a narrow subfield to show more easily that he is one of the best in that subfield. While the regulations suggest that anyone who meets the evidentiary requirements can qualify for this type of green card, the immigration service is now interpreting the regulations to evaluate the application in two stages. First, has the applicant provided the appropriate evidence? Second, does the evidence taken as a whole show that the applicant is recognized internationally as outstanding in his academic field?
As this category also belongs to the First Employment-Based Preference group, there is currently no wait to apply for and obtain a green card, beyond the administrative processing time. Unlike the process for those with extraordinary ability, the outstanding researcher or professor category requires that an employer files the petition for the applicant.
F. EB-2 National Interest Waiver Green Cards for Applicants with Exceptional Ability or Professionals with an Advanced Degree
This category is for aliens of “exceptional ability” in the sciences, arts or business and for members of the professions holding an “advanced degree.” Those who also qualify for a National Interest Waiver need not first obtain a PERM labor certification before they can apply for the green card. The National Interest Waiver is an exemption from the labor certification requirement which is available if the intended employer can demonstrate that the applicant’s occupation is deemed to be in the national interest and that the applicant can meet a three pronged test described below.
1. What is a National Interest Waiver
Typically Employment-Based Second Preference green cards require the applicant to obtain a “PERM labor certification” (described below) from the U.S. Department of Labor that confirms that there are no U.S. workers available to take a particular employment position. However, if, in addition to meeting either the Exceptional Ability or the Advanced Degree requirements, the applicant can demonstrate that she will greatly benefit the national interest she can receive a waiver from the requirement to obtain the PERM labor certification prior to filing the immigrant petition. The three-pronged national interest test requires a showing that the applicant’s:
a. Occupation is in an area of substantial intrinsic merit (such as improving healthcare).
b. Employment will benefit the nation as a whole rather than just a specific geographic region.
c. Ability to contribute to the national interest must be substantially greater than the majority of her colleagues such that it outweighs the national interest in protecting U.S. workers through the labor certification process.
2. Basic Requirements for Exceptional Ability
This category is for aliens of “exceptional ability” in the sciences, arts, or business. “Exceptional ability” means “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business,” as evidenced by at least three of the following six forms of evidence:
a. A degree from a college or university relating to her area of exceptional ability.
b. Letters from employers showing that the applicant has at least 10 years of full-time experience in the field.
c. A license to practice the profession or certification for a particular profession or occupation.
d. Evidence that the applicant has been paid a high salary or other exceptional compensation for services.
e. Evidence of her membership in professional associations.
f. Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
3. Basic Requirements for Professionals with Advanced Degrees
This category is for members of the professions holding an “advanced degree.” “Advanced degree” means any U.S. academic degree or foreign equivalent that is above a bachelor’s degree (e.g., a master’s degree or doctorate). A bachelor’s degree followed by at least 5 years of progressive experience in the specialty is deemed equivalent to a master’s degree. To be eligible for this category, the applicant must not only have an advanced degree, but her job also must require one.
4. Issues Particular to Advanced Degree Exceptional Ability Green Cards
The primary benefit of obtaining a National Interest Waiver lies in the time that it can save in the green card process given that the PERM labor certification process can take up to eleven months or more. This benefit is not as significant, however, for those hired by an academic institution after a competitive recruitment process. Through competitive recruitment, such an employer can process the applicant’s green card under a “special handling” process that allows them to short-cut the PERM labor certification process.
Importantly, an applicant who qualifies for the National Interest Waiver can self-petition, while all others in the Employment-Based Second Preference must have an employer to file their petition for them.
G. EB-2 and EB-3 PERM Labor Certification-Based Green Card
For all Third Preference Employment-based green cards, as well as Second Preference Employment-based green cards for which a National Interest Waiver is not available, the prospective employer must first obtain a Program Electronic Review Management (“PERM”) labor certification to test the labor market for availability of U.S. workers. The PERM labor certification process was established to prevent foreign workers from coming to the United States to displace existing or available U.S. workers, or otherwise having an adverse effect upon their wages and working conditions.
1. Basic Requirements
To obtain a PERM labor certification, an employer must first conduct a recruitment process to confirm that there are no U.S. workers (including U.S. citizens, green card holders, and certain other workers) who are minimally qualified, available, and willing to accept the position that the employer wants to offer the foreign worker. After completing the recruitment process, the employer must file a PERM labor certification application online. After the application is certified by the U.S. Department of Labor, the employer files an immigrant visa petition.
2. Preference Categories for PERM Labor Certification-Based Green Cards
The PERM labor certification is required for all Employment-Based Second and Third Preference green cards, except for those with a National Interest Waiver. The Second Preference category is reserved for persons who are members of the professions holding advanced degrees or for persons with exceptional ability in the arts, sciences, or business. The Third Preference category is reserved for professionals, skilled workers, and other workers. A “professional” for immigration purposes is someone who works in a position for which the Bachelor’s degree or higher is the usual minimum requirement for entry into the job. An applicant in an occupation who does not qualify for one of the non-PERM labor certification categories must first obtain an offer of employment and a PERM labor certification before being granted a green card to live and work in the U.S.
A Chinese professional who does not qualify for the National Interest Waiver and does not have an advanced degree, but who does have a baccalaureate degree plus five or more years of experience, may wish to ask his employer to file the petition under the Second Preference category. There is currently a long waiting period for those in the Second Preference group, but there is an even longer waiting period for individuals in the Third Preference group.
H. General Considerations
1. Adjustment of Status Versus Consular Processing
An applicant already living or working in the U.S. under a non-immigrant visa category may be able to obtain his green card while remaining in the U.S. through a process called “adjustment of status.” The other path to a green card requires that an application be filed for an immigrant visa and green card through the nearest U.S. embassy or consulate general abroad that carries out “consular processing” duties.
The applicant’s spouse (to whom the applicant must be married before getting his green card) and unmarried children under the age of twenty-one who are in the U.S. with the applicant can also adjust their status and receive a green card at the same time. Dependents still residing in the applicant’s home country may have to disregard their immigrant visa at a consulate outside of the U.S. (this is also called the “follow-to-join process”). An applicant who is living and working outside the U.S. must consular process with any qualifying dependents.
2. Is It a Good Idea to Get a Green Card?
a. Tax Considerations
A green card holder may be subject to taxation by the U.S. Internal Revenue Service on her global income. A non-permanent resident without a green card may be taxed on his global income only if he is deemed a U.S. tax resident. It is therefore very important to consult with a tax advisor before pursuing a green card to learn of any possible tax consequences.
b. Is the Green Card: Is It Really Permanent? How Does Abandonment Occur?
While it is called a “permanent” resident visa, the green card is only permanent as long as the holder can demonstrate a continuing intent to reside permanently in the U.S. A green card holder who does not both maintain a home in the United States and spend most of her time here may risk having the green card taken away by a Customs and Border Protection Officer (immigration officer) at the port of entry. Some people have tried to hold on to their green cards after they have returned to live in their home country, believing that they can keep their green card as long as they return to the U.S. once every six months, or even more frequently. However, many eventually lose their green cards in this manner, if an immigration officer determines that they have abandoned their U.S. permanent resident status.
c. Citizenship
Generally, a green card holder is eligible to seek U.S. citizenship through the naturalization process if he is at least eighteen years old, a person of good moral character, has held the green card for at least five years (or three years if married to a U.S. citizen for the 3 year period), and has been physically present in the U.S. for at least half of that period. One advantage of having U.S. citizenship is that it permits an individual to sponsor his parents, a spouse, and children to obtain their green cards. A U.S. citizen can become a voting member of her community in the U.S. Importantly, a U.S. citizen cannot be deported even after conviction of certain crimes that might otherwise result in the deportation of a non-U.S. citizen (including a green card holder).
d. Can the Investor Accomplish His or Her Goals and Objectives in the U.S. Without a Green Card?
An investor may be able to accomplish some of the objectives that he wants to pursue in the U.S. with a non-immigrant visa (described below) instead of a green card. For example, a green card is not required to live in the U.S. as a temporary visitor (B-2) who is able to support himself without working in the U.S. Also, one can enter as a business visitor (B-1) to promote a foreign company’s products, take orders, and otherwise meet with executives of the foreign company’s U.S. affiliate without a green card. Further, it is also possible to establish and manage a business in the United States, without a green card if the investor owns or is employed by an affiliate abroad (L-1). Other avenues for work visas include employment as a professional (H-1B), in a managerial or executive capacity (L-1A), or in a specialized knowledge capacity (L-1B) for a U.S.-based company, provided one meets the requirements for each category.