On Aug 28 2018 by H. Ronald Klasko

Klasko Announces New Evaluation Service for U.S. Immigration Options

The EB-5 Reform and Integrity Act of 2022 brought many changes to the EB-5 program. For the latest information, please click here.

Chinese nationals seeking to immigrate to the U.S. are experiencing a time of transition. For many years, the best and often the only option for high net worth individuals to immigrate to the U.S. was the EB-5 investment route. The recent realization that this option would likely not result in being able to immigrate to the U.S. for 10-15 years or more has resulted in pending EB-5 investors seeking other options. Chinese nationals who were considering immigrating to the U.S. based on EB-5 are looking at the alternatives.

Our law firm is ideally situated to assist in the process of evaluating the alternative options. We are well known throughout China for our expertise and experience in the EB-5 industry. However, it is not as well known in China (even though it is throughout much of the rest of the world) that our firm is one of the largest immigration law firms in the world and that we have long worked with individuals, universities, hospitals and companies in handling all aspects of U.S. immigration. We have pulled together our experienced lawyers to evaluate the optimal option for our clients based on each client’s particular background and needs.

For our Chinese high net worth client base, we evaluate three alternatives to EB-5:
  1. EB-1C Multinational Manager: This option has stringent requirements that are presently being interpreted very restrictively by the Trump Administration. The denial rate on these applications is high. The requirements are that the applicant must have been employed in a managerial or executive capacity by a company outside of the U.S. for one year and be transferred to a related company in the U.S. to likewise perform services at a managerial or executive level. It is important for the Chinese national to understand that he/she must qualify not as the owner of a business but rather as a full-time manager or executive of the business

    The problem with this option is the USCIS interpretation of what is a managerial or executive position. In 2018 (different than prior years), we generally recommend EB-1C only for companies of substantial size both in China and in the U.S. The key is proving multiple levels of managerial, supervisory and/or professional level employees both in China and in the U.S. We generally recommend at least three tiers of employees in both companies, at least two of which tiers are occupied by executives, managers or supervisors. The corporate relationship can be based upon the acquisition of a company in the U.S. or starting up a U.S. subsidiary of a foreign company.

    It is possible – – but not necessary – – to commence the process by obtaining an L-1A managerial or executive visa, which can be obtained with significantly lower standards for a period of one year for a new or start-up business. However, obtaining an extension of the L-1A status after one year is difficult; and converting the L-1A to EB-1C multinational manager immigrant status is even more restrictive.

    Our corporate immigration team at Klasko, made up of approximately 50 lawyers and other professionals, has been successfully preparing and filing multinational manager immigrant petitions for some of the largest companies in the world, as well as start-up companies and everything in between. They are in charge of evaluating this option for our interested clients from China.

  2. EB-1A Extraordinary Ability: The extraordinary ability standard is the highest level of qualification in the U.S. immigration system. It requires documentation of “sustained national or international reputation” as “one of the few at the top of his peers.” What this means is that we have to prove that our client has a reputation and recognition at a national level for his or her accomplishments in a specific field. For example, if the field is business, we want to show unusual success in starting, managing or expanding businesses and that such successes have been publicized through media or in other ways such that his or her successes are recognized by many outside of the people with whom he works or interacts. It is necessary to meet certain documentary criteria, but that is not enough. Assuming those criteria are documented, it is then necessary to prove that the applicant has achieved the necessary level of national or international recognition, usually through reference letters.

    We at Klasko have a separate group of lawyers, paralegals and technical writers who devote 100% of their time to preparing extraordinary ability (O-1 and EB-1) and national interest waiver petitions. We have successfully prepared and filed many hundreds (possibly in excess of 1,000) of such petitions. For many years, we have been relied upon to evaluate the backgrounds of potential EB-1A applicants and advise whether to proceed, whether to consider other options or how to enhance qualifications in order to file a successful EB-1 petition at a later date.

  3. E-2 Visa: The E-2 (treaty investor) visa is based upon acquisition of citizenship by investment in Grenada. Since we introduced this option to our Chinese EB-5 clients almost two years ago, it has become the option of choice for many. There are two steps to this process. The first step is obtaining citizenship in the country of Grenada through an investment of at least $150,000. Citizenship can usually be obtained within about 4 months. The second step is applying for a 5-year renewable E-2 visa, which usually requires an investment of about $200,000 or more (although there is no exact minimum investment required). The E-2 visa has the advantage of being obtainable within about 2 months and being renewable after the 5 years assuming the business is still viable. However, it is not a green card and it does not lead to a green card unless the investment amount and employment creation qualifies for EB-5. However, it does allow an EB-5 applicant to spend the quota waiting period in the U.S. with children going to school in the U.S., spouse being able to work in the U.S. and possibly being able to avoid taxation on worldwide income depending upon the amount of time spent in the U.S. The basic requirements are that the applicant invest a “substantial” amount in a business in the U.S., the applicant own at least 50% of the business, the business employ people other than the applicant and the applicant either manage the business or hire and oversee a manager. Unlike the EB-1C option, the E-2 visa holder does not need to be the active manager of the business.

    Although this is a new option to Chinese nationals (since China does not have an investment treaty with the U.S.), it is not a new option to our law firm. Over 80 countries in the world have bilateral investment treaties with the U.S., and we have successfully prepared and filed E-2 visa applications for nationals of many of those countries for over three decades.

In the coming weeks, we will be formally launching our evaluation service and providing an opportunity for interested people in China to submit requested information and documents to enable us to provide formal advice regarding the best option for each individual. Our evaluation will also include our legal fee quotation if we are requested to move forward with the option selected. Our evaluation will also include advice on timing, risks and chances of success.
In anticipation of the launch of our evaluation service, we will shortly be publishing three separate analyses to educate our Chinese clients and potential clients on these options:
  • An EB-1C analysis prepared by our corporate immigration team
  • An EB-1A analysis prepared by our EB-1 team
  • An E-2 analysis prepared by our investor team
We hope that this evaluation service will shed some light on the often-confusing array of U.S. immigration options and be a helpful service to our Chinese clients.