D&A Newsletter July 2020: India, US, Italy, Vietnam Immigration

Join our EB-5 Visa Webinar | July 8 2020

Interest in EB-5 visa is growing quickly because it has not been included in President Trump’s “immigration ban”. 

Join us for a free webinar where our Global Chairman, Mark Davies, will answer all your EB-5 questions. Mark will be joined by Matt Hogan, Vice President of Project Development at CMB Regional Centers. The EB-5 visa offers a path to US permanent residency (Green Card) for a minimum $900,000 investment per family. Conditions apply.

July 8, 2020 – 5:30pm India | 7pm Vietnam | 1pm London | 8am New York

Click here to register

Davies & Associates Italy: Expansion

We are pleased to announce the appointment of a new Italian-speaking team member, Matteo Tisato. Matteo is based in our Miami, Florida office and brings experience from working for law firms on both sides of the Atlantic. Matteo is already busy assisting our Italian clients with realizing their US immigration goals. He is also our go-to staff member for anyone seeking residency and citizenship of Italy. Matteo can be reached at mtisato@usimmigrationadvisor.com 

Siamo lieti ti annunciarvi l’ingresso di Matteo Tisato nella squadra Davies & Associates. Matteo gestisce il nostro ufficio a Miami (Florida), assiste tutti i nostri avvocati americani ed è punto di riferimento per la clientela Italiana. Matteo si occupa inoltre di permessi di soggiorno e naturalizzazioni Italiane

Read Matteo’s latest blog on the Italian Elective Residency Visa

Davies & Associates India: Remittance Taxes

The Indian government is changing the way it collects tax on remittance payments from October 1. People seeking to emigrate who do not wish to pay this tax at source and rather account for it later may wish to move their money ahead of the new rules coming into effect. It is possible to pre-emptively move money into an escrow account in the United States until such a time as they are ready to proceed with emigration process.

Read more about India’s remittance tax at source 

Davies & Associates Vietnam: New Hanoi Office

Davies & Associates is opening a new office to meet demand in Vietnam. Our new premises are located in the Hanoi Lotte Center in Ba Dinh, Hanoi. This complements D&A’s Ho Chi Minh City office, located in the landmark Bitexco Tower. Davies & Associates Global Chairman Mark Davies is currently based out of our Vietnam office and is available for meetings. 

Davies and Associates đang mở một văn phòng mới để đáp ứng nhu cầu tại Việt Nam. Cơ sở mới của chúng tôi được đặt tại Trung tâm Lotte Hà Nội, quận Ba Đình, Thành phố Hà Nội.

Contact us to schedule a meeting with D&A Chairman Mark Davies

Davies & Associates India: Retrogression

Big news for EB-5 in India is that the country is technically no longer in retrogression. This may be the artificial result of a slowdown in processing at USCIS. Given recent changes to the way USCIS sequences applications, this could be a favourable time to make an application before processing picks up and India potentially returns to retrogression.

Contact us for a more detailed explanation. 

D&A in the News

Davies & Associates was quoted in the Financial Express on the impact of President Trump’s suspension of H-1B, J-1 and L-1 visas through the end of the year. Mark Davies, Global Chairman of D&A, explained that restrictions on the H-1B have been tightening for years, and that we are seeing an increasing number of H-1B holders looking at the E-2 and the EB-5 visa as alternatives. Both visas have been exempted from the “immigration ban”.

Read the article here.

Finally: Happy Independence Day to Those Celebrating on Saturday

India Tax Changes on Remittances Delayed to October

Sukanya Raman, Associate in our Mumbai office, analyses changes to India’s taxation of remittances.

In February, 2020 the Union Budget had proposed the levy of Tax Collected at Source (TCS) on remittances made under the Liberalised Remittance Scheme (LRS) of the Reserve Bank of India. Although, the Scheme was introduced in the year 2004 with a limit of USD 25,000. This is the first time TCS shall be levied at 5% on remittances over and above certain limit.

TCS was to be applicable for remittances on or after April 1, 2020, as per the budget 2020. However, the provision shall now be effective from October 1, 2020.

In a Financial Year (FY) April- March under the Liberalised Remittance Scheme a resident individual can remit USD 250,000, equivalent to INR 1,90,00,000 with an exchange rate of INR 76.00.

LRS is applicable to resident individuals which also allows minors to remit money to any permissible current or capital account transaction or a combination of both. If remitter is a minor, then their natural guardian must undertake a declaration form. The LRS cannot be availed by corporates, partnership firms, HUF, Trusts etc.

TCS shall be collected at the rate of 5% on remittances aggregating to INR 7,00,000 or more in a financial year. 

Per the RBI guidelines, LRS is permitted for private visits to any country (except Nepal and Bhutan), gift or donation, traveling abroad for employment, emigration, investment abroad, maintenance of close relative abroad, medical treatment abroad, overseas education and Any other current account transaction which is not covered under the definition of the current account in FEMA 1999.

Under the LRS, remittances can be consolidated in respect of close family members. However, it shall be subject to the individual family members complying with the terms and conditions of the LRS.

The remitter is eligible to claim credit for the tax collected (TCS) by the bank while filing their Income Tax returns, if it is remitted to the sender’s own account abroad.  

Based on the data released by RBI, remittance rose by 36% in  FY20 to USD 18.75 billion over the previous high of USD 13.78 billion in FY19.

This blog is for informational purposes only and is not meant as legal advice. For advice on this matter, please contact our team.


The President’s Immigration Ban: Update

President Trump has signed the Executive Order temporarily suspending some visa categories for an initial 60 days. This mostly applies to people outside the United States seeking permanent residency / Green Cards, excluding the EB-5 program.
The State Department has just issued a clarification stating that the Order is not retroactive and that “no valid visas will be revoked under this proclamation.”
There are a number of exclusions and exemptions. We recommend you contact us to discuss your specific circumstances.

What is NOT included in the ban:

What is also NOT included in the ban, but subject to a 30-day review:

E-3 Australian Professional Specialty Visa

EB-5 Visas Exemption
The EB-5 Immigrant Investor Visa has been given a special exemption from the ban. EB-5 is a job-creating program. Each EB-5 investment is required to create ten American jobs. The EB-5 Immigrant Investor Program is a fast route to a Green Card for families or individuals able to invest $900,000.

Review of Non-Immigrant Visas
The Executive Order only covers immigrants outside the United States seeking permanent residency (Green Cards). Non-immigrant categories, such as the E-2 Visa, the L-1 Visa, and the H-1B Visa are not currently included in the ban.
However, the Executive Order does call for a review of non-immigrant programs within 30 days with a view to “other measures” affecting these categories. The Order instructs the Secretary of Labor, the Secretary of Homeland Security, and the Secretary of State to report recommendations to the President within 30 days regarding restrictions (if any) on non-immigrant visas.

Adjustment of Status
The order only applies to those seeking immigrant visas (i.e. those outside the US seeking to go through consular processing). It does not impact those inside the US already on a valid visa that are eligible to do Adjustment of Status (AOS). Clients should consult us before traveling outside of the United States if they have a pending AOS application or may be eligible to file one in the near future.

Our Advice
We recommend that anyone seeking a US visa proceed with their application. Much can change in the time it takes to prepare one.
With flights grounded and American embassies closed to consular appointments, the Executive Order makes limited material difference in the short term. There are likely to be a number of lawsuits challenging the ban. This is also an election year. A new administration could be expected to reverse this Order.
We will provide updates on the 30-day review of non-immigrant visas. Some non-immigrant categories, such as the E-2 Treaty Investor Visa, bring investment to the United States and create jobs.

Each client’s circumstances are different. Please contact us to discuss how this may affect you.

Contact Us


The President’s Immigration Ban: Why you Should Still Apply for a Visa

Cost of EB 5 Visa

Duncan Hill is marketing director at Davies & Associates LLC. Duncan is not a lawyer and nothing in this blog constitutes legal advice.

 

President Trump tweeted last night that he would sign an executive order banning immigration to the United States. While it is still unclear how this will play out, it is only likely to be a temporary setback. Anyone hoping to apply for a US visa should continue as normal if their circumstances permit.

“In light of the attack from the Invisible Enemy,” the president tweeted, “as well as the need to protect the jobs of our GREAT American Citizens, I will be signing an Executive Order to temporarily suspend immigration to the United States.”

Beyond the tweet, there is very little detail on what would be covered in the executive order. Immigration is a broad concept in the United States, ranging from asylum and the rights of undocumented workers to green cards for investors under the EB-5 Visa program. Would, for example, spouses of Americans (K-1 visas) be included in a ban?

Despite the lack of detail, it might still be advisable for would-be immigrants to press on with their applications. For one thing, any ban would likely cause a build-up of demand. Therefore, progressing an application would help secure a good position in the line once a ban is lifted.

While it is difficult to predict when such a lifting would occur (especially as the ban has not yet been ordered), there are still clues. For starters, President Trump said in his tweet this would only be temporary. Moreover, there are also likely to be legal challenges as there were over Executive Order 13769, the so-called “Muslim Ban”. Additionally, this being an election year, a change of administration in January 2021 would likely result in a reversal.

The second, closely related reason to persevere with an application is that it takes time to prepare one. Davies & Associates specializes in EB-5 visas, E-2 visas, and L-1 visas, all of which require significant preparation. This work could still be conducted while a ban was in progress.

Under the EB-5 program an entire family can obtain Green Cards in exchange for a minimum $900,000 investment. The US authorities are meticulous that each dollar is properly accounted for, and this can take time to document.

The United States Citizenship and Immigration Services (USCIS), which processes EB-5 applications, is still operating in spite of Coronavirus. While they are closed to public interactions, they continue to adjudicate cases. Processing times currently range from 30 to 50 months. Reform to the EB-5 adjudications process will probably reduce this, but it nevertheless points to a time frame much greater than a temporary immigration ban.

The E-2 visa allows a family to move to the United States for the purposes of owning and operating a business. The applicant must pitch a credible business case to the US authorities, which takes time to prepare.

E-2 applicants must come from an E-2 Treaty Country. If you are not from an E-2 Treaty country, it is possible to become eligible for an E-2 visa by first taking citizenship of a country that is eligible. The cheapest and most cost-effective of these is Grenada, Turkey and Montenegro.

Processing times for these citizenship-by-investment programs are quick. In Grenada, for example, citizenship can be obtained in less than three months. The Grenadian authorities are still processing applications, despite a strict lockdown. There is no requirement to visit the country so applications can be made remotely.

Davies & Associates has helped clients obtain the E-2 visa in this way. Countries non directly eligible for the E-2 visa include India, China, Russia, Vietnam, South Africa and Nigeria. Davies & Associates has helped people from non-Treaty countries become eligible for the E-2 visa.

The L-1A visa moves managers within the same company, from an overseas office to an American one. At D&A we specialize in so-called “new office” L1s. This is where we help clients set up a US branch of their existing business and then move themselves or a colleague there to manage the new office.

Inevitably it is necessary to set up the US office before applying for the visa. Again, this is work that could be done regardless of an immigration ban. Our corporate lawyers have helped hundreds of foreign businesses relocate and thrive in the United States.

So, given the time it takes to prepare a visa application and the uncertainty surrounding the ban, it is advisable to start applying regardless. The USCIS and American embassies would likely face a backlog once any ban is lifted. Secure yourself a good position in the queue by proceeding with your application.

 


EB-5 Visa Availability Now Determines I-526 Approvals Process

Cost of EB 5 Visa

Duncan Hill is marketing director at Davies & Associates LLC. Duncan is not a lawyer and nothing in this blog constitutes legal advice.

 

The United States Citizenship and Immigration Services (USCIS) has changed the way it processes I-526 petitions. Instead of operating the first-come-first-served approach, adjudications are now being determined by visa availability.

An I-526 petition is the application for the EB-5 Immigrant Investor Visa. This program offers a relatively straightforward path to a Green Card for families or individuals able to invest $900,000 to create ten jobs in the United States.

Under the previous approach, all I-526 applications were processed in the order in which they arrived at USCIS. This meant that resources were allocated to adjudicating I-526 forms submitted from mainland China, even though there is a long wait for visas for people born there.

The popularity of EB-5 in China means that the country has far exceeded its annual quota of 700 visas / no more than seven percent of the total 10,000 available visas for a given year. People born in mainland China currently face a multiple-year wait for an EB-5 visa.

Under the first-come-first-served approach, USCIS was compelled to adjudicate Chinese applications in sequence – only for them to sit in another queue once approved. Under the new system, USCIS is able to prioritize applications from people from countries that do not face a wait for a visa.

In practice, this means removing applications from mainland China from the queue until such a time as visas become available. The aim of the change is to reduce processing times for applicants from underrepresented countries. Standard processing times currently take up to 50 months.

Besides China, the other two countries with the greatest number of EB-5 applications are India and Vietnam. Neither is expected to be affected by this processing change in the short term. The priority dates for both countries are actually forecast to become “current” once again in the visa bulletin this summer.

However, it should be caveated that this may well be the artificial result of processing issues
at USCIS. Once these are worked through, visa availability would quickly diminish and applications from India and Vietnam would be placed on the backburner with China.

One upside to having an application pending for longer at USCIS is that a child might not “age out” while waiting for a visa to become available. A single EB-5 application can cover an entire family provided the children are under the age of 21.

In a quirk of the system, a child’s age is “frozen” while the application is pending with USCIS and they begin “aging” again once it is approved. This means some families see a child pass the age threshold after they have been approved but before a visa has become available. In this case, the child would require their own separate EB-5 application to move to the United States with the rest of the family. By having an application “pending” for longer, aging out would become less of a critical issue.

In spite of these changes, it is still possible to jump the queue by paying to expedite an I-526 petition. It is also possible to force USCIS to act on a pending application if you feel your EB-5 application has been unreasonably delayed. By filing a writ of mandamus in federal court, USCIS can be compelled to act on your I-526. Oftentimes, the mere threat of legal action will compel USCIS to adjudicate without needing to go the whole way towards litigation.

Our team has filed dozens of successful writs of mandamus actions against USCIS for unreasonably delaying immigrant petitions. We can assist regardless of whether your I-526 application was prepared by Davies & Associates.

To remain compliant with the EB-5 program, an applicant’s investment must create and sustain ten full-time American jobs. To ensure compliance, the vast majority of investors place their investments with a Regional Center.

Regional Centers use the investment to fund construction projects like hotels, condominiums and retail complexes. These projects require significant amounts of labor which ensures compliance with the job-creation requirement.

It is important to invest with a reputable Regional Center to maximize the chance of the return of your investment. Davies & Associates is able to provide due diligence on Regional Center projects.


The Solution to a Stuck EB-5 Visa Application – Filing Writ of Mandamus

The United States Citizenship & Immigration Services (USCIS) has slowed the pace at which it adjudicates I-526 petitions. The I-526 form demonstrates a petitioner’s eligibility for the EB-5 visa and constitutes the first official step in the application process for would-be immigrant investors.

The slowdown in adjudications are the result of political, administrative and external factors. They are evidenced in the fact that “priority dates” for countries in visa retrogression are quickly shifting forward. The changes to the priority dates is most likely the artificial result of low demand for visas caused by a slow rate of adjudication rather than meaningful changes to the number of applicants waiting for EB-5 visas.

 

USCIS Ombudsman

There are several courses of action open to any immigrant petitioner who suspects their I-526 application to have been unreasonably delayed. In the first instance, petitioners should contact the USCIS ombudsman’s office. This may not ultimately expedite your adjudication, but it is helpful to show evidence of seeking a solution should a petitioner need to subsequently escalate their case. Another option is to contact the senator or congressional representative covering the state or district where the EB-5 project is located.

 

Writ of Mandamus

It is possible to file a lawsuit in a federal court to determine whether your immigration petition has been unreasonably delayed. This lawsuit, known as a writ of mandamus, will have no bearing on whether or not your I-526 application is successfully approved. It does, however, force USCIS into adjudicating your case quickly if it is judged to have been unreasonably delayed. Sometimes simply initiating proceedings can galvanize action as USCIS has been known to adjudicate a plaintiff’s application in order to avoid progressing with the lawsuit.

 

Filing a Case

Since filing a writ of mandamus is a legal course of action which may require litigation, it is always advisable to seek advice from an attorney. Contact D&A for a free consultation to determine whether it would be advantageous for your I-526 petition. Our team has filed dozens of successful writs of mandamus actions against USCIS for unreasonably delaying immigrant petitions. We can assist regardless of whether your I-526 application was prepared by Davies & Associates. The average time between filing a writ of mandamus and receiving an adjudication is around two months, in some cases it can be significantly less.

 

Act Quickly

It is anticipated that USCIS might suddenly start processing applications at a faster pace. It is advisable to file a writ of mandamus as soon as possible to have your case reviewed ahead of a possible surge.


Investors look to the E-2 Visa as the Cost of an EB-5 Visa Increases from Thursday

Cost of EB 5 Visa

Duncan Hill is marketing director at Davies & Associates LLC. Duncan is not a lawyer and nothing in this blog constitutes legal advice.

 

Barring an eleventh-hour intervention, the minimum investment required for an EB-5 application is increasing from $500,000 to $900,000 in areas of high unemployment and from $1 million to $1.8 million everywhere else.

 

Given the time it takes our attorneys and paralegals to prove that a client’s source of funds meets with strict US requirements, it is most likely too late to apply for an EB-5 at the current rate. 

 

For those who can afford the higher investment amount, the EB-5 visa remains one of the fastest routes to a Green Card. 

 

For those who cannot afford the higher investment amount there are a range of options available. Here at D&A, the team picking up most of the slack is the E-2 Visa team (although there are a range of other options available and we advise you to discuss them with us.)

 

The E2 Visa is designed for people seeking to move to the United States to own and operate a business. Processing times are quick, and spouses are eligible to apply for work authorization in the United States. It is possible to expand an existing business, open a new one, or buy an off-the-shelf franchise.  

 

Only citizens of countries with a relevant commercial treaty with the United States are eligible for E-2 visas. This excludes some countries where demand for US visas is the highest, including India, China and Vietnam. Citizens of these three countries already face a multiple-year wait for an EB-5 visa because demand has far outstripped supply.

 

Yet at D&A we are part of a wave of pioneering law firms working to help citizens of such countries become eligible. For example, we have helped clients obtain E-2 visas by first becoming citizens of Grenada in the Caribbean. Coupling an E-2 Visa with Grenadian citizenship in this way has allowed people to live and work in the United States while on the EB-5 waiting list. If the business becomes large enough, it is feasible that it could be transitioned to a Green Card via EB-5.

 

Grenada is a cost-effective option with no residency requirement or tax on worldwide income.  Processing times are quick and have just got even faster. It is possible for the whole process of Grenada and E-2 to take just a matter of months. Grenada is not the only option available and D&A works with a range of E-2-eligible citizenship by investment programs around the world, including Turkey, Montenegro, and various EU countries. 

 

Contact our team today to discuss a bespoke immigration solution to suit your needs.