Foreign Investor Immigrants Stymied By Restrictive U.S. Border Entry Rule

Even though not a great believe in the value of investor immigration, still notable these restrictions under USMCA:

Foreign investors investing in the United States today are being stymied by a U.S. immigration border policy that is preventing them from looking after their businesses in the country. The policy is particularly aggravating to Canadian investors, but is also a problem for other foreign investors that are not visa exempt, that is, from countries where the applicant must apply for a B-1/B-2 visitor’s visa to come to the USA. The relevant rule could be easily changed by U.S. Customs and Border Protection (USCBP) through a policy directive. The question is what useful purpose does the current policy serve if it is needlessly interfering with foreign investments in the United States?

The Problem

The problem has arisen largely due to the Covid-19 pandemic. Foreign investor appointments for E-2 treaty investor visas under the USMCA, formerly the NAFTA free trade agreement, are taking an inordinate period of time to schedule. Indeed, at one point, consular officials in the past were even unable to say how long it would take to get interviews for E-2 visas. This left foreign investors having to come to the U.S. in some other way until they could finally get their E-2 visas. While applying for a change from visitor to E-2 status inside the U.S. is a possibility, some time ago the Consul General at the Toronto Consulate advised U.S. attorneys to avoid that option, implying such applications are likely to be denied. It appears that U.S. officials saw resorting to a change from business visitor to E-2 status inside the U.S. as playing the system because processing of E-2 visas are normally in the purview of U.S. Consulates abroad. So the only reasonable way has been to enter the U.S. as business visitors.

The key snag is the limitation in the amount of time that E-2 investors are allowed to stay in the U.S. in visitor status. Current border policy is to grant a maximum of six months. Indeed, the policy is to refuse entry to business visitors who have already been physically present in the U.S. for six months in any year.

Unwritten Policy Rule

In a previous Forbes article I described the rule as follows:

“For Canadians, one of the issues that often arises is whether the visitor has already spent more than 183 days in a year in the USA. U.S. Customs and Border Protection (USCBP) officers have been enforcing what Ira Kurzban, the Dean of American immigration attorneys and author of the authoritative book Kurzban’s Immigration Law Sources, diplomatically calls an “unwritten rule” that visitors may not spend more than 183 days in any year in the USA. Written or not, the USCBP custom at the U.S.-Canada border is to prevent visitors from entering in most cases when it is determined that the visitor has already accumulated 183 days of U.S. physical presence in the last year.

The rationale for the rule comes from the way USCBP officers assess visitors coming to the U.S. As a general rule, such officers consider the following elements in making a decision about allowing a visitor to enter the U.S. Firstly, is the applicant a security threat? Secondly, is the applicant a criminal? Thirdly, is the applicant working illegally in the U.S.? Finally, is the applicant really living in the United States permanently but only saying he is visiting? A convenient way of implementing the policy considerations raised by such thinking is to prohibit visitors from entering the U.S. for more than 183 years in any year. After all, how many people can live without earning income for six months or more?”

Serious Hardships

Until visa wait times at the U.S. consulate in Canada are reduced to reasonable levels, however, this rule is imposing serious hardships on E-2 investors. To qualify for E-2 visas, investors have to make more than a marginal commitment of their funds into the United States. Usually this takes the form of a purchase of a business, a hotel for example. Sometimes it takes the form of a start-up where the investor hires employees or commences offering products or services. Whatever the form taken, foreign investors want to be able to be where their money is to be on top of what is going on.

What is needed is for the USCBP to realign its policy with the needs of investors and with the processing times of the U.S. consulates abroad, including the ones in Canada. At the present time, scheduling interviews at U.S. consulates in Canada for E-2 visas for example, are taking at least eight months or more. Applying the current USCBP 180-day policy means that Canadian investors can be shut out of the United States for at least two months or more while awaiting approvals. Clearly these investors need to be granted more than six months time in the U.S. under these circumstances. In the normal course of events the USCBP has the authority to grant business visitors up to one year’s time on an entry. So why not grant these investors such approvals?

A False Alternative

It is true that such investors can apply to extend their visitor’s status for another six months from inside the U.S. But that is a needless extra hardship that is fraught with uncertainty and possible unpleasant future consequences while the investor awaits a ruling. Why put the investors in that position?

What E-2 Visitors Can Do

While business visitors are constrained in what they can do while being in the United States, still such a visitor is at least entitled, “to examine or monitor potential qualifying investments” so as to be ready to apply for an E-2 visa. True, the investor must behave as a business visitor and is “precluded from performing productive labor or from participating in the hands-on management of the business.” Still, there is a list of things such a visitor can do. For example, a business visitor can observe the conduct of business, negotiate contracts, undertake study incidental to the purpose of the stay, consult with clients or business associates, participate in conventions, conferences, or seminars, make phone calls, give employees instructions, take clients to their cars and even engage in commercial transactions outside of gainful employment. The key is no “hands-on-work” and no salary being paid. This can all work if handled properly.

Being Reasonable For A Change

Assuming the USCBP officers applied a more reasonable time frame policy for business visitors dealing with E-2 investments by matching visiting times with likely consular processing times of E-2 visa application, and assuming officers were reasonable in how they viewed what these investors are doing while complying with their periods of authorized stay, these headaches could be avoided and a more reasonable business-friendly environment could be created for E-2 investors.

Why not give it a try?

Source: Foreign Investor Immigrants Stymied By Restrictive U.S. Border Entry Rule

Semotiuk: Foreign Investors Need Help From America’s EB-5 Immigrant Program

Funny op-ed that reads more as Semotiuk’s brief for a client than broader policy arguments. And not convinced of the overall economic benefits claimed for the program but understand the frustration of  applicants caught by operational changes during the pandemic:

Marcos Bertola is a U.S. EB-5 Regional Center foreign immigrant investor whose green card is in limbo because the Regional Center program shut down while his application was in process. He is one of over 30,000 such committed investors whose I-526 immigration petitions are stuck. At least $15 billion in capital investment and almost 500,000 American jobs are caught up in this logjam according to IIUSA, Invest in the USA.

Better Understanding Needed

“I believe the lack of sympathy from Congress towards what investors are going through with the lapse of the Regional Center program is due at large to people not realizing who they are,” said Bertola. He added, “Investors are seen as millionaires who can afford to wait another year so that the delay won´t affect their lives. But in our case, and that of many EB-5 investors we know of, we are just middle-class families investing our savings in the American economy to give a better education for our children and because we believe in the excellence of the American institutions to such a degree that we want to be part of it.”

Bertola describes how the process started for his family, “The decision to immigrate to the US started when my daughter was finishing high school and decided to become a nurse. Researching on how she could study in the US we learned that EB-5 seemed an opportunity for us to be with her as a family. My wife who is a researcher graduated with a Master´s Degree at one of the most prestigious universities in Latin America was thrilled with the idea of being able become a doctor in the US.”

Bertola filed his EB-5 investor petition in 2016, when adjudication times were expected to be around 14 months. It took three years for it to be approved, yet he was glad and expected things to run faster after that. The next step in their immigration journey was to get approval from the National Visa Center to get their immigrant interviews at the U.S. Consulate abroad. He and his wife even bought a house in the US in 2019 in Orlando, Florida expecting everything would work out. That house has been empty ever since, creating a financial burden of paying for two households, with property taxes, insurance, HOA, etc., in addition to their expenses overseas.

Consulates Closing Didn’t Help

Bertola indicates, “Our documents were filed at the National Visa Center on March 2020, but due to the pandemic, Consulates worldwide closed that month. When they resumed immigration interviews one year later, there was a 4-tier priority to determine which immigration petitions should be interviewed first and EB5 cases were last on the list.”

The Bertola oddessy continued, “Our interview was finally scheduled, with the assistance of a Florida Senator´s office, for July 30th, 2021 after the sunset of the Regional Center Program. A week after the interview, we got an email from the Consulate saying that everything was good on our end, and they were waiting for the reboot of the program to issue our visas. We were in the incredible situation of having all steps of our petition approved, including the Consulate interview, but unable to get our visas due to the lapse. Our passports are still with the Consulate since then.”

Psychological Toll

This wait has also put an immense psychological burden on his children. “My daughter who was on her 3rd year as a nursing student has just decided she can no longer wait to go. My wife could be graduated in the biomedical field and working in healthcare in the U.S. by now if not for this reauthorization lapse. Our lives have been put on hold for many years in the expectation of moving to the U.S., but every time a deadline seems close, a disappointment comes and uncertainty grows,” Bertola says. He adds, “Those years of professional development and achievements are being robbed from us, especially my children who are starting their careers. Our personal belongings are in a warehouse for more than a year, ready to be shipped, and we spend our time searching the internet for news about the reauthorization which never comes.”

No Sense Of Urgency

The way Bertola sees it, “There is no sense of urgency in Congress towards the reauthorization, and investors are being used as hostages in the negotiations.” A grandfathering bill, such as FIFPA (Foreign Investors Fairness Protection Act) could easily solve this problem, but according to Bertola it lacks political awareness. “It´s a damaging situation for the reputation of the program and could bring as consequence the loss of millions of dollars and thousands of jobs if the investors start to sue to get their investment back. Nobody wins, but we investors are the weakest link,” says Bertola.

“Right now, our best hope is to have our voices and personal stories heard. I have a dream of moving to America as a legal immigrant and to become an American citizen in the future, but that dream is being denied for thousands of investors who did nothing wrong but were caught in the political turmoil of these past years,” concludes Bertola.

Grandfathering Legislation Needed

Dealing with this problem, Kurt Reuss a securities broker and founder of EB5 Marketplace, recently wrote, “Existing EB-5 regional center investors are stuck in limbo right now as their applications remain frozen due to the lapse of the Regional Center Program. The U.S. government has an obligation to live up to its end of the bargain: adjudication of the petitions of investors who invested and filed in good faith. To do otherwise, would be just plain wrong and would negatively impact our immigration reputation.”

According to Reuss, who advocates an end to the Regional Center program in favor of the EB-5 direct investment option, “Simple grandfathering legislation can protect those investors who filed their petition when the program was authorized. Take care of past regional center investors who acted in good faith and end the program with that.”

Whether or not the Regional Center program is renewed, it is clear that it is time to help the foreign investors caught in the fray.

Source: Foreign Investors Need Help From America’s EB-5 Immigrant Program

@ASemotiuk: How To Fund Biden’s Infrastructure Plan Using Immigration

Benefits of investor immigration and citizenship-by-investment schemes over stated along with risks of corruption. Great benefits for immigration lawyers and consultants, however:

Recently, President Biden unveiled a $ 2 trillion infrastructure plan to fix roads and bridges, while boosting research and tackling climate change. Calling it a “once-in-a-generation investment in America,” he introduced the plan to address the inequalities exposed by the pandemic and to heal America’s economy from the bottom up. More recently, Biden specified how he would raise the money through higher corporate taxation. But could there be a better more creative way?

How Much Is That?

If you are anything like me, you’re not entirely sure just how many zeros there are in a trillion. I had to look it up, and it’s 12 zeros. In other words, President Biden’s infrastructure proposal would cost exactly $ 2,300,000,000,000. It has been estimated that $1 trillion worth of one dollar bills stacked one on top of the other would measure 109,220 kilometres. Put another way, if you stacked up all the dollars in President Biden’s plan one on top of another, they would reach half way to the moon. That’s a lot of money. While Biden has set out his corporate tax proposal as a way to fund it, he has indicated he is open to suggestions on this theme.

Raising Taxes Has Been Proposed

It seems to me there are basically three ways America could pay for President Biden’s plan. The first way is to raise taxes. Biden argues that for those taxpayers making less than $ 400,000 per year there would be no tax increase. Instead he has proposed to raise taxes on large corporations and high net worth individuals. It is clear that Republicans want none of that and will fight tooth and nail to oppose the plan. Let’s face it, rich people and big corporations just don’t want to pay for this proposed program. With the Democratic majority in both Houses, Biden may be able to shove the plan down their throats. Or he may not. That drama will play out in the weeks ahead. But let’s keep an open mind about this.

A Second Alternative

A second alternative would be to go further in debt, increasing the federal debt from its current $ 21 trillion to $ 23 trillion. This would be like drawing down even more debt on a federal credit card that has long ago already exceeded its limit. So far, with interest rates at record lows, going into debt has been workable. The challenge there is the day when holders of American dollars lose confidence in them. That’s when interest rates will start rising and the federal debt will become unmanageable. Until then though, just printing more money could work. This would be the lazy way out of the challenge, seemingly the least painful way immediately, but likely to cause a terrible hangover down the road.

But there is a third way. And this fits with the already mentioned Biden’s willingness to consider alternatives.

Paying For Infrastructure Repairs Using Immigration

The third way would be to adapt an investor immigration program to pay for at least some of the infrastructure plan. The current U.S. EB-5 investor immigration regional center program includes a component in which foreign investors invest $ 900,000 for a period of five years on a project approved by the U.S. Citizenship and Immigration Service (USCIS). Each application must create at least 10 new jobs and enables such an investor and his or her family to immigrate to the United States permanently. Out of about one million applicants who immigrate to the United States each year, current allowances allocate only 10,000 slots to such foreign investors and their family members. However, it would not be hard to imagine how this program could be altered to help pay for Biden’s plan over a period of time. That would mean we would get the same result Biden proposes, without it costing Americans as much since the cost would be paid by new foreign investment brought into the country.

Suppose, for example, we agreed to increase the number of investor-related visas coming into the United States per year from the current 10,000, to say 100,000. Assuming each family on average has four persons, that would mean there would be 25,000 investors coming into the country under such a scenario. If each investor invested $ 900,000 and created 10 new jobs as required under the EB-5 program, that would mean the EB-5 program could generate $ 22.5 billion in revenues and 250,000 new jobs per year.

To be more exact, Biden’s plan calls for over $ 2 trillion in investment to be spent and paid for over 15 years. Using that as a measuring stick and assuming the $ 900,000 per investor would remain the same under the USCIS program, it would mean we would aim to attract some 375,000 investors to the United States over 15 years and earn just under $ 340 billion. However, if you spread this effort out over say a 40-year time frame, such an effort would exceed $ 1 trillion in investments.

Long Term Thinking

There are about 15 million millionaires in the world today outside of North America. This plan would call on attracting less than 10% of them to America over the next 40 years. That may not be easy, but maybe it could be done. The key thing is that such a program would generate 10 million new jobs for Americans. Assuming such a program was ongoing, the amounts invested would be repaid with ongoing investment over time. Further, this doesn’t even consider what other investments each such family would make in America as they buy houses, send kids to schools and spend money on consumer goods.

Maybe these assumptions about the EB-5 program are too unrealistic or miss the mark in some way. Even so, they do illustrate how the EB-5 program could help defray at least some of the costs of Biden’s proposal if used in combination with other ways of funding it. By tinkering with the various options available, a package may be created that will impose less of a burden on U.S. taxpayers and spur the economic recovery at the same time. It is worthwhile to consider these alternatives in this context.

Source: How To Fund Biden’s Infrastructure Plan Using Immigration

Debate over birthright citizenship emerges

Another follow-on article on birth tourism:

Eliminating birthright citizenship would be an overreaction to fears about a growth in birth tourism, according to an Ottawa immigration law professor.

Canada’s Citizenship Act enshrines the principle of jus soli, conferring automatic citizenship on anyone born on Canadian soil, making it one of just 30 or so countries in the world to maintain birthright citizenship.

But a recent reaction against the phenomenon of “birth tourism,” in which non-resident non-Canadians give birth in the country in order for their children to obtain Canadian citizenship, has led to calls to tighten up the law.

At its policy conference in Halifax last summer, members of the Conservative Party of Canada passed a resolution to amend the act so that birthright citizenship is only automatic when one of the child’s parents is either a citizen or permanent resident of Canada, following the example of Australia, which made a similar move in 2007.

And Liberal MP Joe Peschisolido, whose Richmond, B.C. riding has become a flashpoint for its high rate of births to non-resident mothers, lent his support to a petition demanding an end to birth tourism, which it denounced as an “abusive and exploitative practice” that is “debasing the value of Canadian citizenship.”

Despite the passion the practice arouses, Jamie Liew, an associate professor at the University of Ottawa’s faculty of law, says it’s important to remember that there is currently no legal bar to birth tourism in Canada. And she strongly opposes any amendment that would tackle it by ending birthright citizenship.

“In my opinion, it would be a massive overreaction to a very small problem that will lead to humongous social problems,” Liew says.

Such an amendment, she says, would affect every Canadian, because people would have to prove their citizenship regardless of where they were born.

“That opens up a can of worms, because you would have whole swaths of people without the means or knowledge to apply for citizenship,” Liew says. “You create a whole population of stateless people who could be excluded from the basics of life in Canada.”

In addition to the cost to the taxpayer of a whole new layer of bureaucracy, Liew says, there would also inevitably be mistakes and bad decisions in complex or difficult cases.

“People will end up in court challenging decisions, which is expensive for everyone,” she adds.

In a recent study carried out for the Institute for Research on Public Policy think tank, author and commentator Andrew Griffith, a former senior official at Immigration, Refugees and Citizenship Canada, suggested that previous figures may have heavily underestimated the incidence of birth tourism.

Statistics Canada numbers indicate birth tourism peaked in 2012, when the agency recorded 699 births to mothers whose residence was outside Canada, falling to 233 in 2015, before rising again in 2016 to 313.

But Griffith used hospital billing data to show that the number of non-resident mothers giving birth in Canada is actually much larger. Even without data from Quebec hospitals, the figure rose to 3,223 in 2016 from 1,752 in 2012. According to Griffith’s findings, the 3,628 births to non-resident mothers in 2017 accounted for 1.2 per cent of all births in Canada, a proportion he says can no longer be dismissed as “insignificant.”

Griffith says the discrepancy can be accounted for by the fact that birth tourist mothers are more likely to use their temporary Canadian address on birth registration documents used by Statistics Canada, while giving their real addresses abroad for the purposes of hospital payments.

However, he acknowledges that his figures overstate birth tourism to some extent, because the billing data does not distinguish births to temporary residents such as corporate transferees or international students or children born to Canadian expatriates returning home temporarily to give birth.

He says he welcomes the federal government’s recent commitment to look into the issue and says he hopes they can get a better handle on the precise number of birth tourists.

“But I don’t think it’s tenable to leave it at just doing a study. If they find that my numbers are correct, they need to look at options to address it,” Griffith says. “What’s important is how it’s perceived as undermining the fundamentals of citizenship.”

Despite his discomfort with birth tourism, Andy Semotiuk, an immigration lawyer with Pace Law Firm in Toronto, says he’s a firm believer in birthright citizenship.

“The troublesome thing for me is the people making money from advertising and facilitating anchor births,” he says, suggesting legal solutions focus on those profiting off birth tourism, rather than the mothers engaging in it or their children.

Source: Debate over birthright citizenship emerges

ICYMI: ‘Dreamers’ unlikely to rush to claim asylum in Canada, immigration experts say

Good survey of opinions:

Canadians shouldn’t expect another flood of asylum seekers to illegally cross the border in the wake of the Trump administration’s decision to scrap a program designed to protect young, undocumented immigrants in the United States, immigration experts say.

The situation of the roughly 800,000 so-called Dreamers, undocumented immigrants who were brought to the U.S. as children, is very different from that of the Haitians and other asylum seekers who’ve been coming to Canada in large numbers via irregular border crossings, said Ottawa immigration lawyer Ronalee Carey.

For one thing, it’s still unclear whether the Dreamers will actually face deportation from the U.S. once the Deferred Action for Childhood Arrivals (DACA) program ends six months from now.

“If I was a DACA recipient, I would not be trying to come to Canada irregularly,” Carey said. “I think they should sit tight and wait and see what happens.”

U.S. President Donald Trump has given Congress six months to come up with a solution for the Dreamers, so-called because of the proposed DREAM Act, voted down in the Senate in 2010, which would have offered them legal status in exchange for joining the military or attending college. DACA is a stopgap measure, implemented by the Obama administration, that has shielded the Dreamers from deportation but has not given them a path to citizenship.

On Tuesday evening, Trump tweeted that he will “revisit this issue” if Congress is unable to “legalize DACA” in the next six months. A majority of Americans believe Dreamers, many of whom have grown up speaking English and have attended American universities, should be allowed to stay in the U.S.

Carey said it would be a “huge mess” if the Trump administration actually tried to deport the 800,000 undocumented young people.

“That was a smart tweet on his part to sort of take back a little bit,” she said.

If some DACA recipients do head north, they will be very unlikely to meet the criteria for refugee status in Canada, she said. But some could come to Canada through normal immigration streams, like the Express Entry program for skilled workers, which would give them a path to permanent residence. Others could come as international students if they have the money, Carey said. In fact, at least one Canadian post-secondary institution is already trying to capitalize on the opportunity. Huron University College, in London, Ont., announced Wednesday it will be offering a $50,000 scholarship for students affected by the DACA decision.

Even if some Dreamers do decide to brave the odds and seek refugee status in Canada, most wouldn’t need to cross the border illegally to do so, she said, because of an exception in the Safe Third Country Agreement. Most would-be refugees who try to enter Canada from the U.S. can be turned away at official border crossings and told to make their asylum claims in the U.S., which is why so many have been coming into Canada at unauthorized points. But Mexicans, who account for about 70 per cent of DACA recipients, are exempted from this rule because they don’t need a visa to come to Canada. They can claim asylum at any border checkpoint, Carey said.

Independent Senator Ratna Omidvar said she has spoken to a number of Dreamers in recent days, and they seem less inclined to seek asylum in Canada than to look at immigrating through other channels.

“That was the least attractive to them,” she said. “They see themselves in a different way.”

Still, Omidvar said Canada should look at taking in 10,000 to 30,000 DACA recipients over the next several years, though she doesn’t believe the government needs to create a special program for them. She compared the Dreamers to the draft dodgers who came to Canada in the 1960s to escape the Vietnam War.

“I feel that Canadians have a huge amount of empathy and compassion, but their empathy for young people is always louder,” she said.

Irene Bloemraad, a sociology professor at the University of California Berkeley who specializes in immigration, said she doesn’t expect floods of Dreamers to make their way to Canada immediately, but it could be an appealing prospect if Congress fails to come up with a solution in the coming months.

“I don’t think there’s going to be hundreds of thousands of people coming north,” she said. “But I think there’s going to be interest.”

She believes Canada should create a special provision to fast-track DACA recipients who want to come north as skilled workers, students or asylum seekers. What Canadians dislike, she said, “is when you have unanticipated numbers of people crossing the borders and then claiming asylum. … But when those flows can be structured in a way, then I think Canadians are very, very generous.”

The issue has come up at a sensitive time for the Canadian government, with NAFTA negotiations underway between Canada, the U.S. and Mexico. Asked about a potential influx of Dreamers to Canada, Hursh Jaswal, spokesperson for Immigration Minister Ahmed Hussen, said the government “won’t speculate on any possible future trends.”

But Bloemraad said Canada needs to look ahead. “Even if the Canadian government is worried about how being proactive with regards to the DACA recipients might have complications for NAFTA negotiations, the alternative, not doing anything, is going to create much bigger policy problems down the road.”

Andy Semotiuk, a Canadian and U.S. immigration lawyer, said Canada has other immigration hurdles to face beyond the DACA recipients. He pointed to the 260,000 Salvadorans and 86,000 Hondurans whose temporary protected status in the U.S. is set to expire, saying the trend of illegal migration to Canada could become “overwhelming.”

Liberal MP Pablo Rodriguez is set to go to Los Angeles this week to try and head off that possible next wave of migrants by correcting misinformation about Canada’s immigration system.

Source: ‘Dreamers’ unlikely to rush to claim asylum in Canada, immigration experts say | National Post