0. February 17, 2010
US Corporate & Business Immigration Law Presented to German American Business Association Whittier Law School Costa Mesa, California

1. Rico Fontana, Senior Manager IHR –Global Immigration Lead
David Hirson, Partner
Fragomen, Del Rey, Bernsen & Loewy, LLP
18401 Von Karman Ave., 2nd Floor
Irvine, CA 92612
Office:
Direct:
Fax:
Rico Fontana, Senior Manager IHR –Global Immigration Lead
Fluor Enterprises, Inc

2. Topics for Discussion to Include:
U.S. Immigration Law, 2009 updates
How the economy has and may impact the immigration law and U.S. businesses working with immigrants of all levels
The impact on business
CIR – Comprehensive Immigration Reform in 2010?
Germany Specific Issues
Visa Waiver Program
ESTA
E-1 / 2 Treaty Visas

3. About Fragomen Single Focus Scalable Partnering
Largest firm in the world exclusively dedicated to providing global immigration services
Resources and technology designed specifically for immigration services
Scalable
36 offices in 14 countries, 250 attorneys, 800+ professionals
Strategic network of 100+ in-country co-counsel
Partnering
Custom representation tailored to our clients’ needs
Flexible service model

4. Global Coverage Fragomen Office Core Strategic Partner Planned Office
Russia
Canada
United Kingdom
Belgium
Germany
France
Switzerland
Japan
United States
Spain
Italy
Israel
South Korea
Mexico
UAE
China
Taiwan
India
Hong Kong
Thailand
Costa Rica
Venezuela
Malaysia
Singapore
Peru
Brazil
Australia
Chile
South Africa
Argentina
Fragomen Office
New Zealand
Core Strategic Partner
Planned Office

5. Recognition
Corporate Immigration Law Firm of the Year – 2005, 2006, 2007, 2008, 2009
Best Lawyers - Ranked #1 in the United States in Immigration Law
Chambers US and Chambers Global Highest possible ranking in immigration category
UK Lawyer top ranked Immigration Firm
Professional Recognition
I revised this slide….

6. Involved Government Agencies
Department of Homeland Security:
United States Citizenship and Immigration Services - USCIS (formerly the Immigration & Naturalization Service – INS or BCIS)
Immigration & Customs Enforcement – ICE
Customs & Border Protection – CBP
CIS Ombudsman
Department of Labor
Department of State (DOS):
U.S. Embassies
U.S. Consulates

7. Basic Concepts Immigrants vs. non-immigrants Dual intent
Petitions, visas, & status
Quotas & chargeability
Preservation of family unity
Priority workers
Preference classification

8. Nonimmigrants
Coming to the U.S. temporarily
Retain residence abroad
Dual intent - only for H’s and L’s
“Alphabet Soup” - A-V

9. Immigrants “Green card holders” = “permanent residents” = “immigrants”
Coming to U.S. permanently
Numerically limited
Visa bulletin
Priority date
Can become U.S. citizens after years

10. Family-Based Permanent Residence
Immediate relatives (spouses, minor children & parents of U.S. citizens)
Other close family members of citizens or permanent residents, including:
Unmarried sons & daughters of citizens (over age 21)
Married sons & daughters of citizens
Spouses, children & unmarried sons/daughters of permanent resident aliens
Brothers & sisters of citizens

11. Employment-Based Permanent Residence: 2 or 3-Step Process
Labor certification PERM (where required)
Filed by employer on behalf of foreign national
Processed by U.S. Department of Labor
Immigrant preference petition
Filed by employer
Self petitioning possible in limited cases
Processed by USCIS
Adjustment of status or consular processing
Filed by the foreign national & family members

12. 3 Steps to a Green Card Labor certification - PERM
filed by employer on behalf of foreign national employee
processed by U.S. Department of Labor (DOL)
DOL regulated test of the local US job market
involves lay-off assessment (of relevant position/location within the 6 months before filing with the DOL)
Immigrant preference petition (I-140)
based on approved labor certification (Step 1 above)
Adjustment of status (I-485)
filed by the foreign national & family members
based on approved labor certification and I-140 petition (Steps 1 & 2 above)
NOTE: Lay-off analysis only relevant in Step 1 12

13. Employment-Based Categories
EB-1: Priority workers
EB-2: Advance-degree professionals &
aliens of exceptional ability*
EB-3: Professional, skilled & unskilled
workers*
Schedule A workers
EB-4: Special immigrants
EB-5: Employment creation
(* labor certification required)

14. EB-1: Priority Workers Persons of extraordinary ability
(similar to the O-1 nonimmigrant category)
Outstanding professors & researchers
Multinational executives/managers
Labor certification not required

15. EB-2: Advanced-Degree Professionals & Persons of Exceptional Ability
Job requires advanced degree (Master’s & above) or Bachelor’s degree + 5 years progressive professional experience
Labor certification required
Persons of exceptional ability in science, art or business (labor certification forms filed w/ I-140 petition)
Waiver of labor certification when employment is in the “National Interest”

16. EB-3: Professionals, Skilled Workers, Other Workers
Most commonly used, historically highest demand
Professionals: position requires bachelor’s degree or foreign equivalent degree
Skilled workers: position requires minimum 2 years experience and/or training
Other workers: limited to 10,000
Labor certification required in all cases

17. Impact of Termination on Nonimmigrant Visa Status
Options available to terminated employees
Depart U.S.
Change of status to another visa classification
Secure position with another U.S. based employer
Timing
No “grace period” in the Regulations
Unlawful presence issues
Withdrawal of petition
Particular considerations for H-1B employees
LCA issues
Return transportation
Dependents

18. Immigration Update I-9 Compliance
ICE and DOL audits are on the increase
Several criminal prosecutions of employers
Administrative fines can be substantial
Check on your system of accurately completing and maintaining the I-9 forms in your company
Do self audits or have independent audits by counsel routinely AND before any inspection by ICE or DOL
Consider outsourcing to an I-9 service organization
USCIS through the OMB extended approval of Form I-9 to Aug. 31, 2012
Employers may use the Form I-9 with the revision date of either Aug. 7, 2009 or Feb. 2, 2009

19. Immigration Update (cont.)
E-Verify
On September 8, 2009, DHS began implementing a rule that requires certain federal contractors to enroll in and use the E-Verify system to verify the employment eligibility of new employees, as well as current employees who are assigned to work on a federal contract.

20. Immigration Update (cont.)
H-1B Audits
USCIS Fraud Unit Site Visits Continue
Over the past year, employers have continued to experience unannounced site visits by USCIS’ Office of Fraud Detection and National Security
FDNS conducts site inspections to verify the information that employers provide in their immigration petitions.
Site visits have focused mostly on H-1B petitions, though inquiries on other types of cases are possible.
Some employers have reported receiving multiple site visits, each pertaining to a separate petition and foreign worker.

21. The Impact of the Economy on U.S. Immigration
I. In A Weakening Economy
Fewer jobs – Higher unemployment. November %
Lower salaries
Higher enforcement
Restrictive immigration laws
No distinction made between legal and illegal immigration
Xenophobia

22. The Impact of the Economy on U.S. Immigration
II. In A Growing Economy
More jobs – Lower unemployment.
10% in December 2009
9.7% in January 2010
More jobs for highly qualified individuals
Higher wages and salaries
More favorable pro-immigrant legislation
Xenophobia continues

23. Salary Reductions & Leaves of Absence for H-1B Employees
Labor Condition Application (LCA) obligations
The higher of the prevailing vs. actual wage = required wage
Employer must re-file LCA if required wage not met
Filing of H-1B amendment may be required
Leave of Absence, Furlough, etc.
Does the leave for absence or furlough result in a reduction in salary?
Cannot “bench” under LCA rules
Need to update the LCA
If so the H-1B petition must be amended
Thank you Alan for setting the scene, and providing us that background.
As employers attempt to make their way through this serious economic downturn, we see a host of creative cost saving measures being implemented across the country. From Salary Reductions throughout the company, to more innovative practices such as furlough’s or week long site closures, that even the State of California has implemented. Lets examine some of the practices and discuss the immigration implications.
Salary Reduction – (a number of companies are reducing wages across the board for every employee, 5, 10, 15%) Any time an H-1B worker’s wage is reduced, the employer must examine the LCA associated with the H-1B to see what the prevailing wage listed on the LCA is.
LCA obligations
The higher of the prevailing vs. actual wage = required wage
If the salary reduction will remain above the prevailing wage, the employee’s salary can be reduced safely without an LCA violation. However, the reduction cannot take the employee’s salary below the listed prevailing unless a new LCA is obtained. For example. The LCA lists the prevailing wage as 60K , the salary is currently 65K, but with a 10% salary reduction the salary would be approx. 59K . The employer can only legally reduce the Salary to 60K. As immigration counsel you may want to raise the employment law question, Can H-1Bs be treated differently that US workers under applicable State and Federal laws ? Certainly there is a federal law prohibiting the employer from lowering the salary lower than the prevailing wage.
Another alternative is to consider amending the LCA. This is only worthwhile if the employer can find a prevailing wage that supports the wage proposed with the salary reduction. Unfortunately most prevailing wage sources have not kept up with the rapid decline in wages and it might be hard to find a source that supports the new wage. In addition, sometimes just the cost for legal fees of amending the LCA may be more than what the employer would save in reducing the salary.
Does change in Salary require I-129 amendment? – The standard test for whether an H-1B should be amended is if there is a ‘MATERIAL CHANGE”. In an AILA liaison meeting with the Service Center operations in July of 2003, the Service said that the reduction of salary below that listed on the I-129 but still in compliance with the LCA would not be considered a material change, and no notice would be required.
Leave of Absence, Furlough, etc – The
Does the leave for absence or furlough result in a reduction in salary?
Is there “benching” under LCA rules?
Must LCA be updated?
If so must the I-129 must be amended?
Can H-1Bs be treated differently that US workers? 23

24. Changes in Job Duties and Employing Legal Entity
Changes in Job Duties or Job Location
Job Duties
If new duties are a “material change”, the government may need to be notified and petition amended
Job Location – typically only relevant for H-1B employees
May require LCA posting and/or I-129 amendment
Other Visa Categories
Evaluate whether notice of termination should be provided to government or other program sponsor
Another possible scenario as employers find creative solutions to getting through the economic downturn, is to restructure the company and or move people around to new jobs or job locations. All of these scenarios require an evaluation as to whether the foreign national remains eligible for the visa category and whether an amendment or notice need be filed with the immigration Service.
For H-1B visas the standard established in the regulations is that an amended petition be filed “to reflect any material changes in the terms and conditions of employment or training or the alien's eligibility as specified in the original approved petition.”
Job location has not been considered “material” unless a new LCA is required. If the employee transfers to a location not included on the I-129 but is covered by an LCA that was in place prior to the employee’s move, no need to amend the H-1B. (Ephram Hernandez) However, if there are any changes to the job duties , the employer must evaluate whether they rise to the level of a “material change”. A change in Job duties that would affect the original assessment of H-1B eligibility would require an amendment be filed. For example, if an H-1B changed from one specialty occupation to another specialty occupation, an amended I-129 should be filed.
Many companies are also finding themselves restructuring, merging, and reorganizing. Over the years the service has said a simple change in name does not require an amendment. Certainly under AC21 any company that has merged or has reorganized, and can argue and H-1B employee has moved to a “successor in interest” company would not need to amend the petition, (however the employer would need to either assume the liability for the old LCA or file a new LCA)
If However an employer with multiple entities simply moves the employee to another legal entity, without restructuring, or a “successor in interest” argument, an amended I-129 would be required.
Other visa categories.
L-1s do require amendment,
Most categories do require amendment when moving to a different legal entity unless there is a SSI argument 24

25. Impact on Foreign Nationals’ Immigration Status
When is the Employee “Out of Status”?
Options available to terminated employees
Depart U.S.
Change of status to another visa classification
Secure position with another U.S. based employer
Timing
No “grace period” in the regulations
Unlawful presence issues
Withdrawal of petition 25

26. How does Layoff affect PERM?
If Employer has layoffs:
In the same geographic area; and
In same or similar position; and
Of potentially qualified U.S. worker(s)
Then:
Employer must wait 6 months after layoff to File new PERM for these locations and positions

27. When is I-140 “Portable”? I-485 pending 180 days
“Same or similar occupation”
New position is in same or similar occupational classification
Change in position within same employer or to different employer
Priority date an I-140 approval remains with foreign national employee

28. I-485 Portability Miscellaneous Portability points
Geographic area not relevant
Wage should not be sole factor in determining “same or similar”
Multinational managers or executives can take advantage of portability
Foreign national must have new offer of employment at the time the I-485 is being adjudicated under portability and must have notified USCIS
If I-140 withdrawn prior to I-485 pending 180-days, no longer eligible for I-140 portability
If I-140 withdrawn, denied or revoked after I-485 pending for 180-days, foreign national remains eligible for I-140 portability

29. Comprehensive Immigration Reform in 2010?
2007 House approved CIR, failed in Senate
Presidential promised CIR, delayed by Health Care
The recovering economy will be a positive factor
Concerns about “Amnesty” and “Path to Citizenship”
Fines - Tax Returns - No Criminal or Immigration Record
Possible Points System replacing Preference System
Will legal & illegal immigration concepts be unscrambled
Politically very sensitive. Xenophobia remains.
For 2010 CIS may be enacted. There are so many perceived and actual obstacles delaying the process.
The CIR for America’s Security and Prosperity (CIR ASAP) Act of 2009 was introduced on December 15, 2009.
Details will be found in the separate hand out

30. B-1 Business Visitors
Persons coming to the U.S. in B-1 visa status must comply with all of the following requirements:
Enter the U.S. for a limited period of time
Intend to depart at the end of the temporary period of stay
Maintain a foreign residence with no intent to abandon the same
Possess financial means adequate to stay in the U.S. without working in the U.S.
Engage solely in legitimate business visitor activities

31. B-1 Business Visitors On foreign payroll
Activity in U.S. benefits foreign employer
Business meetings, training, & joint development projects
Visa Waiver Program
- 36 participating countries
90-day maximum stay
Must obtain electronic pre-approval before departure for U.S.
Ineligible for change of status

32. Export Control
Transfer of sensitive technologies and the resulting implications for the hiring, visa processing, immigration status and deployment of foreign nationals
Develop programs for :
Risk assessment
Preparation and monitoring of license applications
Development of compliance management systems

33. F-1 Students Academic studies: elementary through postdoctoral
admitted for “duration of status” (D/S)
Full-time matriculated student at approved school
“Optional Practical Training:” pre- or post-graduation
total = 12 months; part-time during school year, full-time during vacations and after graduation; OPT extension available for some science, technology, engineering, math (STEM) graduates
need employment authorization document (EAD);
School endorsed I-20,issued via Student and Exchange Visitor Information System (SEVIS), a web-based system for generation of Forms DS-2019 and tracking
not tied to particular employer
“Curricular” practical training if part of educational program
Need letter from school
School endorsed I-20 (issued via SEVIS System)

34. J-1 Trainees Exchange visitor program
Categories include trainees, interns, research scholars, specialists, students
Emphasis on reciprocity, cross-cultural activities, and orientation
Some J’s must return to home country for 2 years after completion of program or seek waiver of this requirement
skills list
government funding
graduate medical education
SEVIS applies

35. L-1 Intracompany Transferees
Intracompany Relationship:
Parent, subsidiary, affiliate, branch or joint venture
Prior Employment Abroad:
1 year within 3 years preceding transfer to U.S.
Qualifying Capacity:
Executive, Managerial (L-1A)
“Specialized” Knowledge (L-1B)
Duration:
L-1A = 7 years
L-1B = 5 years

36. H-1B Category: USCIS Provisions
“Specialty Occupation” -- Entry level requirement = minimum Bachelor Degree or equivalent
3 for 1 rule -- 3 yrs. experience = 1 yr. of college
Labor Condition Application (LCA) certified prior to filing petition
Six-year maximum stay (can extend beyond 6 years under certain circumstances - AC-21)
65,000 annual ceiling, of which 6,800 are set aside for citizens of Chile and Singapore
20,000 additional visas allocated to holders of advanced degrees from U.S. universities
Reasonable costs of return transportation for dismissed employee

37. Labor Condition Application
Filed with U.S. Department of Labor
Attests to four basic conditions
Wages
Working conditions
No strike or lockout
Notice
Wage offered must be the higher of Prevailing Wage or Actual Wage paid to similarly situated employees
H-1B dependent vs. nondependent employers
Public access file

38. E’s, O’s & P’s E-1 Treaty Trader E-2 Treaty Investor
O-1 Persons of extraordinary ability
P Internationally recognized athletes
or entertainment groups

39. PERM Labor Certification Process
Program Electronic Review Management
One standardized system
Electronic application process
Strict advertising, recruitment and posting requirements
Must obtain prevailing wage determination before filing

40. Key Aspects of PERM (cont’d)
Processing times vary widely; cases selected for audit experience lengthier processing time
Some changes to eligibility standards for foreign nationals
Strict recordkeeping and documentation requirements
Applications subject to DOL audits based on predetermined factors or at random

41. Adjustment of Status
Can file concurrently with preference petition if priority date is current
Immigrant visa must be available for preference category and foreign national’s country of birth/ chargeability
Filed at USCIS Service Center
Nebraska or Texas

42. Consular Processing Similar requirements as for adjustment of status
Some additional documentation necessary (police clearances, military service certificates)
Application processed through U.S. Embassy/Consulate abroad
Mandatory for certain foreign nationals

43. Changes of Address
USCIS notification required within 10 days of change for principal and all family members.
File electronically or in hard copy on Form AR-11.
AR-11 will not update addresses on pending filings; must separately notify appropriate USCIS adjudicating office of change.

44. APPLICATION MATERIALS
Passport must be valid for six months beyond date of intended stay in U.S.
DS-160 –online nonimmigrant visa application will be mandatory from April 1, Prior Forms, DS-156, DS-157 etc. are being replaced by Form DS - 160
Photo
Fees - $131 + applicable reciprocity fees increased fees imminent (see next slide for proposed new fees)
F/M/J SEVIS visa fee - $200 for F-1s, $180 for J-1s
Same documents for family members
Original Notice of Approval, Form I-797 (if applicable). A copy should be acceptable.

45. Proposed New Fees to Apply for a Visa in 2010
Under the proposed rule, applicants for all visas that are not petition-based, including B1/B2 tourist and business visitor visas and all student and exchange-visitor visas, would pay a fee of $140.
Applicants for petition-based visas would pay an application fee of $150.  These categories include: H, L, O, P, Q and R visas.
 H visa for temporary workers and trainees
The application fee for K visas for fiancé(e)s of U.S. citizens would be $350. 
The fee for E visas for treaty-traders and treaty-investors would be $390.

46. ENHANCED ENFORCEMENT
DHS has authority to administer and enforce visa-related law
Obtaining a visa is a privilege, not a right
General delays and unpredictability
Embassy security and shutdowns
Heightened scrutiny of applicants
New petition approval verification requirements (PIMS)
Travel advisories for U.S. citizens
Review of Visa Waiver countries 8

47. Visa Waiver Program Visa-free entry and stays of up to 90 days
Available to nationals of 36 countries:
Andorra, Australia, Austria, Belgium, Brunei, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Iceland, Ireland, Italy, Japan, Liechtenstein, Latvia, Lithuania, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, and the United Kingdom
Passport requirements:
E-passport – if passport issued on or after 10/26/06
Digital photograph – if passport issued btw 10/26/05 and 10/25/06
Machine-readable passport – if issued btw 10/26/04 and 10/25/05
ESTA – Electronic System for Travel Authorization: new online advance authorization system for VWP travelers. Became mandatory on 01/12/2009.

48. ENTRY INTO THE U.S. US VISIT Entry “check in” system
Photographing and fingerprinting upon entry
Applies to all NIV holders and Visa Waiver Program travelers
Effective 1/19/2009, applies to all U.S. LPRs, most Canadian citizens (except Canadian visitors for business/tourism, transiting travelers, unless inadmissibility waiver required)
Exit procedures currently suspended
NSEERS (“special registration”)
For certain nonimmigrants
Requires fingerprinting, photographing & secondary inspection; follow-up registration at DHS discretion
Departure through designated ports only
Change of address/employment/school on Form AR-11SR

49. Form I-94 Form I-94 Arrival/Departure Record Card (I-94 card)
Date of issuance
Status classification
Date of expiration of legal status
Admission number

50. EXCEPTIONS FOR CANADIANS
Passport now required for air entries from within or outside of Western Hemisphere. Evidence of citizenship and identity required for land/sea entries from within WH.
No visa required (except for A, E & G visas)
Inspected and issued I-94 (except visitors) at airport or border
Eligible for TN status
May process L-1 at border

51. MAXIMUM STAY H-1B - 6 years w/ possible addl. Extensions
L-1A - 7 years
L-1B - 5 years
O - no maximum
F (EAD) - 12 months; 12 month post-completion OPT extension available for certain science, technology, engineering & math graduates
J - 18 months for trainees; 12 months for interns
TN - no maximum but 3 year increments
E - no maximum

52. FOR MORE INFORMATION
United States Citizenship and Immigration Services (USCIS)
Department of Homeland Security
U.S. Embassy and Consulate Information (DOS)
Department of Labor (DOL)
Social Security Administration (SSA)

53. 1986 IRCA Legislation Had Shortcomings
Creation of I-9 was quid pro quo for amnesty
Millions legalized if here from
But borders never got sealed
Shortage of unskilled workers developed
False documents were easily available

54. ICE Machine Gearing Up ICE now being told to target employers
Quid pro quo for new amnesty
Some industries will be short-term casualties
ICE targeting wholesale violators
650 employers notified in July 2009
1,000 in December 2009

55. Good Faith Defense Do the documents appear genuine?
Constructive notice?
Obvious fake docs, SSA mis-match letters, other conduct
ICE Knows I-9 Rules are Complex
ICE Looking for Good Faith Compliance

56. Penalties Fines based on conduct $110 to $16,000 per occurrence
Criminal penalties for pattern and practice
Up to 5 years in prison
Debarment as federal contractor

57. I-9 Self Audit Proactive approach best
I-9 self audit of entire company
Hire counsel to assist
Terminate unauthorized workers
Correct I-9’s that were done wrong

58. E-Verify I-9 Verification
On line system to verify I-9 documents
Partnership between DHS and SSA
US CIS administers the program
ICE looks favorably on use of E-Verify
Queries DHS and SSA Databases

59. E-Verify Statistics 96% verified to work within minutes
4% receive tentative non confirmations (TNC) requiring follow up
TNC – 3% to SSA, 1% to CIS
Final Non Confirmation: 3.5%
System much more accurate now

60. E-Verify Fed Contractors: Effective September 8, 2009
Congress may moot litigation
$100K per year in biz with fed govt
Subcontracts -- $3k per year
Also required for STEM extensions
Many states now require E-Verify

61. Common Work Authorization Documents
Drivers License and SSN
Restricted SSN never valid for work
U.S. Passport or Green Card
U.S. Birth Cert & Photo ID
Work Permit
Foreign Passport and Certain I-94’s

62. E-Verify Registration
Register on-line with US CIS
No fee
Memorandum of Understanding (MOU)
Designate corporate administrator
3rd party agent can submit data

63. E-Verify New Hires Only at this Time Must Obtain SSN from New Hire
Don’t need SS Card
For I-9 List B doc, Need Photo ID
Not Considered Discrimination
Complying with MOU

64. E-Verify Photo Screening Tool
Photo verification capability
Help detect identity theft
Checks photos, CIS & DOS databases
Drivers Licenses Photos not in Database

65. Problems with E-Verify
Doesn’t detect stolen Identity docs
TNC 8 Day Drill Can Be Difficult
States Not Sharing Data with DHS
Litigation
Congress indecisive re future of the program

66. Future of E-Verify Administration Supports E-Verify
Data continually improving
Privacy concerns outweighed by protection of US Workers
Technology will lead debate towards greater use
Possibly a national ID card with fingerprints and photo

67. Immigration to the USA through Investment in EB-5 Green Card Program
September 2008

68. LEGAL REQUIREMENTS Investment of US$1,000,000 US$500,000, if
Rural Area
Metropolitan Statistical Areas – MSA cannot be rural
High Unemployment Area (150% of National Average)
Creation of 10 Jobs
US Workers

69. LEGAL REQUIREMENTS, Con’t
Include:
Principal investor
Investor’s Spouse
Investor’s Children unmarried and under 21-year old (At Time of Admission into the US after Consular processing or Final Interview where adjustment of status approved in the US)
Spouse and older children can work
Children Can Go to Public or Private Schools

70. LEGAL REQUIREMENTS, Con’t
After admission some family members may wish to return to home country
Permit can be obtained to lawfully remain out of the USA for up to 2 years after commencement of Conditional Permanent Residence
Formalities MUST be carefully followed and application and biometrics completed while IN the US.
The Reentry Permits may be renewed

71. LEGAL REQUIREMENTS, Con’t
Steps –
Filing of form I-526 Petition at USCIS (4 to 6 months; average 5 months)
Approved I-526 Petition Processed at National Visa Center (NVC) (2 - 3 Months)
NVC Sends Petition to US Consulate for Final Interview
(2 – 9 Months)
Timing will vary for US consuls around the world

72. LEGAL REQUIREMENTS, Con’t
Steps, Con’t
If the Investor is in the US the case may be processed as an Adjustment of Status (AOS) in the US
Work authorization (EAD) and if qualified, travel documents (Advanced Parole) will be issued to the investor and her or his qualifying family in about 90 days after filing the AOS (Form I-485)
The processing time of the AOS will take about 9 months or more from date of filing.

73. LEGAL REQUIREMENTS, Con’t
2-Year Conditional Residence (CR)
Continued Investment and Employment Creation
Submit Application for Removal of Condition 90 days before 2nd year anniversary and not later than the 2nd anniversary of the CR
Divorce from spouse or marriage or aging out of children after CR will not stop removal if all else is OK
Estimated processing time 6 months or more

74. LEGAL REQUIREMENTS, Con’t
Eligible to Apply for US Citizenship after 5 years from date of Conditional Permanent Residence
Conditional Permanent Resident and Permanent Resident Expectations:
Reside in the US (See reentry permits)
Pay taxes as a US Citizen
Pass the English and civics tests

75. LEGAL REQUIREMENTS, Con’t
Most Common Issues
Lawful Source of Funds
Trace of Investment Money – Every dollar must be legally obtained and accountable
May be loan or gift from family, friends or company.
Origination of loan or gift funds MUST be proved to be from a lawful source
Bank loans – not secured by the investment do qualify

76. LEGAL REQUIREMENTS, Con’t
Most Common Issues
Ability to maintain business and active management
Ability to prove 10 full-time legal employees
Investment has to be at risk
No guarantees are given or are permitted by law

77. LEGAL REQUIREMENTS, Con’t
Regional Center
Authorized Investment Vehicle
Can Count Direct and Indirect Employment Creation
Must still prove every case that jobs will be created, directly or indirectly
Approval is not automatic
Investment is NOT US Government Approved
No need to be actively working in the business
Investor is a Limited Partner

78. ADDITIONAL REQUIREMENTS
MUST get independent business and tax advice
Must conduct own due diligence
Fragomen, Del Rey, Bernsen & Loewy, LLP advises only on immigration law and practice issues and will file the cases
By law investment is at risk with NO guarantees
For an updated list of all registered Regional Centers please see the USCIS website at:

79. LEGAL REQUIREMENTS Please note:
All times for processing referred to in this presentation are estimates based on current processing time as published by the USCIS or as experienced
No timing can be guaranteed nor can an approval of a case be guaranteed by anyone. The process is in the sole and complete authority of the US Government, Department of Homeland Security, USCIS and the Consul at the consular post or embassy which falls under the US State Department (DOS).

80. Questions / Discussion