H1b amendment - Criteria, Cost, Timeline - FAQ

What is a H1b amendment and who is responsible for it?

When a H1b employee’s job with the same employer undergoes changes like location, role, responsibility etc his/her H1b should be amended to reflect those changes. It’s the responsibility of the employer to pay and file for the amendment.

I am on H1b visa and my work location is changing, Is it mandatory to file H1b amendment?

It depends. If your new work location falls under the same Metropolitan Statistical Area (MSA) then you won’t need to do an amendment. But if they are different then you would need one.

What is a Metropolitan Statistical Area (MSA)?

A Metropolitan Statistical Area MSA is a geographical region defined by population and economic activities. MSAs are designated as such by the Office of Management and Budget (OMB), a federal govt agency.

I am with the same Employer and same client, but work location at client is changing. Do I need to file an amendment?

If the move is permanent and the new location is in a different MSA, then you would need to file an amendment. If the move is temporary, depending on certain criteria, you won’t need an amendment.

I am with the same employer, but joining a new client in the same area. Do I need to file an amendment?

If the location is within the same MSA and there is no change in job duties, roles, responsibilities etc, you won’t need one.

Are MSAs confined to a state?

No. MSAs are not bound by state or city boundaries. In fact they can transcend them. For example, New York MSA comprises of regions from 4 different states.

Can I start working at the new location and apply for amendment?

No. Your employer has to apply for the H1b amendment and upon receiving the receipt, one can start working in the new location.

Can an amendment and visa extension filed together?

Yes, they can be applied together provided other criteria for the extension is met.

What is the H1b amendment processing time look like?

It historically varies depending on USCIS work load. Check with your attorneys.

Can a visa amendment applied in premium?

Generally Yes. But USCIS suspends H1b premium processing occasionally for various reasons. Outside that premium processing is available.

Do we need a new Labor Condition Approval (LCA) for amendment?

No, the old one should be sufficient.

What is the filing fee?

USCIS charges the base fee of $325 (as of this writing) for visa amendment.

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EB5 regional center - 1300+ centers data driven statistics

What is a regional center?

United States Citizenship and Immigration Services (USCIS) designates certain businesses as regional centers through which foreign investors can invest money to obtain legal permanent residency(LPR) commonly referred to as green card. These green cards or visas are granted through the employment based 5th category EB-5 investor visa.

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EB-5 visa program and regional centers

In the early 90s, the EB-5 visa program was amended to create the EB-5 regional center program. An EB-5 Regional Center is a commercial enterprise which can pool money from the foreign immigrants and make capital investment projects. Regional Centers are designated as such by USCIS to promote economic growth and job creation.

Regional center investment is not a mandatory for the EB-5 visa, investors can also make direct investments. However, the primary advantage of the regional center is that the foreign immigrant can meet the visa requirements by counting the indirect jobs projected to be created through the center. In contrast, the direct investment EB-5 applicants can meet the requirements only through the jobs directly created. Regional centers helps the foreign investors who are more interested in obtaining LPR than directly investing or operating a business in the United States (U.S).

The EB-5 Regional Center (RC) is a for profit enterprise which connects the foreign investor to the developers of projects in need of capital. The regional centers typically create an investment fund pooled from foreign investors and sponsors one or more commercial businesses. Real estate is the most common investment avenue of the regional centers. Regional centers sponsors projects like construction of luxury hotels, office spaces, apartment complexes, warehouses etc. While most regional centers are private enterprises, there are a few of govt created public entities too. The primary motive behind the regional center program is to increase economic growth, productivity, job creation.

EB-5 regional center program extension

Congress initially created the regional center program for a period of 5 years. Since then it has been extended to subsequent 5 year periods for the last 25 years. Current approval of the regional center program runs until September 2017.

EB-5 investor visa requirement

The EB-5 visa program in essence has 2 requirements, investments and job creation. The foreign investor has to invest $1 million dollars in a regional center. The amount is reduced to half a million dollars if the regional center is located in areas of high unemployment and not within urban centers.

Such investments have to generate at least 10 direct or indirect full time jobs through the regional center.

The foreign investor can get a green card (LPR) for themselves and their immediate family members (spouse and minor children).

USCIS conditionally approves the green card for about 2 years

After 2 years, USCIS permanently approves the green card upon the investment meeting the job requirement and other EB5 program rules

EB-5 investor can live, study or work anywhere in the U.S. None of the activity needs to be associated to the geographical location of the regional center.

Eb-5 applicants need not have to be actively managing the projects through which they are seeking a green card. However, applicants seeking green card through direct investments typically actively are involved in the operations of the enterprise.

EB-5 Regional center application and designation

Developers makes an application to USCIS through form I-924 to designate a project as an EB-5 regional center. The application includes information about the geographical area and the types of businesses the regional center plans to invest. The application can include actual projects or hypothetical projects. Hypothetical project application should include supporting documents to demonstrate the job creation of the proposed regional center. The application for an actual project requires a description of the nature of the business, it’s detailed business plan and details of employment generated.

EB-5 regional centers statistics

Following are the interesting statistics from the regional centers,

Types of common commercial activity undertaken by the regional center projects

  • Various types of Wholesale trading business
  • Nonresidential Building Construction
  • Traveler Accommodation
  • Architectural, Engineering, and Related Service

EB-5 recipients by regional origin,

EB-5 investors

Highlights from the recently released analysis of the program by the U.S. Department of Commerce. Data were used from FY2012-2013.

Data pulled from the report

  • $5.6 billion invested through the EB-5 investor program in a year.
  • 35% of investments for the regional center project funding were contributed by foreign investors
  • Around 170,000 estimated jobs were created through regional centers in a year
  • California is the top destination for US investor visa program
  • New York, Florida, Texas and Alabama are the top attractive destinations

Spread of regional center projects as of now,

No. of regional centers State/Territory
13 Alabama
1 Alaska
10 Arizona
6 Arkansas
223 California
18 Colorado
5 Commonwealth of Northern Marianas Islands
44 Connecticut
11 Delaware
23 District of Columbia
84 Florida
35 Georgia
3 Guam
15 Hawaii
4 Idaho
30 Illinois
24 Indiana
3 Iowa
1 Island of Guam
7 Kansas
10 Kentucky
17 Louisiana
3 Maine
31 Maryland
21 Massachusetts
11 Michigan
7 Minnesota
17 Mississippi
10 Missouri
2 Montana
5 Nebraska
24 Nevada
10 New Hampshire
85 New Jersey
9 New Mexico
107 New York
21 North Carolina
3 North Dakota
18 Ohio
12 Oklahoma
21 Oregon
68 Pennsylvania
7 Puerto Rico
10 Rhode Island
15 South Carolina
1 South Dakota
14 Tennessee
73 Texas
3 U.S. Virgin Islands (USVI)
7 Utah
1 Vermont
27 Virginia
59 Washington
11 West Virginia
20 Wisconsin
1 Wyoming

USCIS, EB5 approved projects can be found on their website

Number of terminated regional centers

  • 98 regional centers have been terminated by USCIS so far.

Regional center terminations

USCIS terminates the EB-5 regional center designation to the projects for any of the following reasons,

  • If the regional center does not provide sufficient information to USCIS
  • Regional center is not able to generate required employment and economic growth.

USCIS gives the regional center 30 days to furnish sufficient information and avoid termination. However, USCIS termination only disqualifies the project from the immigrant investor program. Those projects can continue to operate otherwise. If the investors already have a conditional green card approved through the terminated regional center, they can still demonstrate the EB-5 requirement compliance and go on to have an approved permanent residency.

USCIS also provides avenues for the terminated regional centers to appeal and get re approved for a EB-5 regional center designation.

Regional center risks

It’s important to note that even though USCIS designates a regional center, it does not guarantee or endorse the activities of the center. It’s also important to note that USCIS or any other government agency does not evaluate the quality of the projects. The responsibility for due diligence of the regional center lies with the immigrant investor. Securities Exchange Commission (SEC) has in recent times expanded the monitoring the EB-5 program and they issued an active fraud alert warning to the investors.

In one example, SEC alleged that a regional center falsely promised certain return on investment for investors investing in the regional center. The developers of the regional center started collecting money for the EB-5 program before the center was designated as a regional center by USCIS. SEC also claimed that the promoters used the money raised for the program for their own personal use. According to SEC, the foreign immigrant investors who invested money on the regional center did not get the Eb-5 green card.

In another similar case, the SEC alleged that another regional center falsely claimed that the necessary approvals were obtained for construction in addition to falsely claiming several non existing backers for the project. In this case too, the promoters used the money for some personal use according to SEC.

In another case, SEC sued lawyers for taking a transaction based fee for promoting certain regional centers.

Any investment has risks and EB-5 is no different. In EB-5 program it’s more complicated because the investors are primarily looking to obtain U.S green card in addition to a return on investment. Also, most times the investors are located in a foreign country and have to depend on agents that makes them vulnerable to scams.

Create your regional center rankings

With recent explosion of regional centers, investors should be cautious about getting involved in bad regional centers. Investors can follow the SEC guidelines and create their own risk based regional center project rankings. Incorporate the following guidelines while evaluating the regional centers. rank and pick the best among them.

  • Verify that the regional center is not listed by USCIS in the terminated list.
  • Verify that the regional center is in the USCIS eb-5 regional center list. Even if the regional center is listed remember that USCIS doesn’t guarantee the quality of investments
  • A regional center files various documents to USCIS to seek and maintain approvals. This includes the form I-924 for initial approval and yearly form I-924A filings to furnish additional information. Obtain these copies from the regional center

  • Evaluate the business plans and scrutinize the project details etc reported in those documents. Seek in writing any clarifications you need.
  • Check the track record of previous EB-5 approvals of the regional center if it exists.
  • Ask if the consultants, attorneys and other service agencies get paid for promoting or recommending certain regional center. Ask them in writing. Individuals and entities who get paid for selling an investment may have to be registered with SEC. Ask for SEC registration details.

  • Cross verify the information that you gather from the developers, consultants and lawyers and make sure they are consistent. Verify any claims made by any of these parties. For example, cross verify building permits, property tax assessments in the area the project is located. Compare similar projects in the area to make sure nothing that is being offered in out of the line.

  • Examine the balance sheet of the regional center, the budget of the projects, assets, the amount of debt, due dates etc.

  • Make sure the developers of the regional center’s incentives are aligned to the success of the project.

  • Watch out for overtly out of the line promises/promotions like risk free returns, guaranteed permanent status, high return on investments etc.

If the EB-5 investment entity end up being fraudulent, you risk of not only failing to obtain LPR, but you might also loose the money. Hence, be extremely cautious and careful about your investment. If you suspect anything after the investment was made report to USCIS and SEC.

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EB-5 visa program - regional centers and risks - Complete guide for 2017

EB-5 is a class of United States (US) visa which allows foreign nationals to obtain permanent residency by making investments in a US business. Recipients of the visa (foreign nationals and their immediate family members) can permanently live and work in the U.S, with a path to US citizenship.

The EB-5 visa program was primarily created to generate jobs through capital investment from foreign investors. And it’s administered by the United States Citizenship and Immigration Services (USCIS).

EB-5 eligibility

At a high level there are two primary eligibility criteria. The foreign entrepreneur has to invest money. And that should lead to job creation. The job creation criteria is generally absent in similar programs in other counties. This ties back to the original purpose of the visa program which is to generate jobs in needed areas. Following is the more formal definition,

  • Foreign investor has to invest $1 million in a qualified investment OR

  • $500,000 if the investment is in a “Targeted Employment Area (TEA)”. TEA are certain areas with high unemployment compared to national average. This can be both rural and semi urban areas.

  • The investment should be expected to create at least 10 full-time jobs

  • The investment must be made to create for-profit commercial enterprise

  • Alternatively, investments can be made through predesignated regional centers

Non-commercial investments like personal residence do not qualify for the program

Targeted Employment Areas

Targeted Employment Area (TEA) is defined by USCIS. TEA is defined as a rural area outside a metropolitan statistical area (MSA) or an area within a MSA or an outer boundary of any city or town (with over 20,000 population) which has experienced 150% unemployment rate of the national average at the time of investment.

Investors can also request an area to be designated as TEA by presenting relevant publicly available government data at the time of petitioning USCIS for the visa.

EB-5 visa processing time

Currently USCIS takes about 1-2 years to process a EB-5 petition. Processing time has been creeping higher because of the recent surge in the popularity of the program. However, USCIS has been trying to bring down the processing times to reasonable levels.

The US immigrant investor visa is allocated about 10,000 visas every year to foreign investors. While the demand for the program was low in it’s first 2 decades of existence, demand has been increasing since the turn of this decade. For the first time in 2014, all the 10,000 investor visas were secured by foreign investors. The demand in recent years has been driven by Asian businessmen looking to immigrate to the U.S. The local industry is also helping the growth by creating projects in the regional centers to attract overseas investments.

Regional origin of the visa recipients, 2016 data

EB-5 recipients

EB-5 regional centers

A regional center is an economic unit designated by USCIS, which allows government and private organizations to create investment pools. Regional centers can then launch a new business or revive an existing business through the money in the investment pool. So, instead of individual investors launching a business on their own, they could simply become a participant in the business by contributing money to the investment pool. Jobs created from the individual contribution are counted towards the requirements of the EB 5 investor program.

Regional centers typically build business like casinos, apartments etc. Regional centers help reduce the overseas investors by providing the reducing the burden of launching a business. They also help in meeting the job requirements of the program. It also helps Regional center project developers to raise money for the business initiatives.

Another important advantage of Regional Center petitioners are that they may meet the job creation requirements based on economic projections of either direct or indirect job creation. But the petitioners through new commercial enterprise can only count the directly created jobs for the the job creation requirement.

Currently there are over 1000 USCIS approved regional centers spread across various states.

Regional centers which are also located in TEA areas are the most popular option by a large margin.

Economic vehicle of the US investor visa immigrants, 2016 data

Economic vehicle # of approvals
Commercial Enterprise 103
Commercial Enterprise in a TEA area 350
Regional Center 9
Regional Center in a TEA area 8,043

EB-5 program steps

USCIS conditionally grants green cards to qualified investor and their family members for a period of 2 years. This approval is granted on the evidence that the investor has already invested or actively in the process of investing in an EB-5 eligible investment. Approval also depends on the evidence that the requisite employees have already been hired. If not, a comprehensive business plan needs be submitted showing that at least 10 qualifying employees will be hired due to the nature of the commercial enterprise.

Before the second anniversary, the investor can apply for removal of conditions and obtain permanent residency. USCIS approves this petition based on the evidence that the foreign investor has sustained the qualified investment throughout the 2-year period of conditional permanent residence. It also hinges on evidence that the 10 full time jobs have already been created or will be created in a reasonable amount of time.

EB-5 risks

Even though USCIS approves the regional centers, it doesn’t endorse the activities of the center. The approval also doesn’t eliminate the risk nor does it guarantee U.S. securities laws compliance. Several fraudulent activities have come to the fore in recent times.

Unlike other investments, the primary objective of EB-5 investments is securing a U.S. green card and in many cases the investors are located in a far off country. Fraudulent businesses can take advantage of the situation and raise money from foreign investors by marketing as EB 5 qualifying investment opportunities. Such investors potentially could potentially lose their investments and the immigration petition as well.

The United States Securities and Exchange Commission (SEC) has recently stepped up the monitoring of the immigrant investor visa program. However, SEC urged investors to be cautious of fraudulent investment opportunities. So it’s highly important for the foreign investors to do their own due diligence before making investment decisions.

USCIS has recently stepped up it’s audit efforts of the regional centers. And it periodically terminates regional centers which were approved earlier. Such terminated regional centers are published on the USCIS website

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