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Newsletter – June 29, 2020

Dear Friends,

Newsletter of June 29 , 2020

Dear Friends,

It has been quite some time since we have sent you a newsletter to update you as to the activities of our law firm as well as the US immigration market in general.  


Our longtime executive assistant Irene Crawford chose to retire at the end of 2019 and our trustworthy paralegal Jennifer Olivera also decided to retire in January 2020. However, we are pleased that both have been replaced by new staff, Nancy Mendoza, as executive office administrator, and Stephanie Sintima as receptionist/office assistant. Attorney Lea Dimitri has been a backbone of the firm and continues to support our immigration filings.


Many of you have become aware of the Executive Order signed by President Trump on June 22, 2020, which succeeded his first Executive Order of April 2020. The June 2020 Order expanded and extended the April 2020 Order. Below are some of the issues that are important to you and to our law firm. Please note that not all nonimmigrant visa categories have been eliminated. Indeed, our law firm had foreseen the attacks that the administration would make on the H1B and H2B visas and therefore we have not been involved in these type of visas for many years.

However, we are distressed to see the attack on the L1 intra company transfer visa. Please note that these restrictions do not apply to Canadians. Further, the legislation will be applicable through December 31, 2020. It also has a very distinct and difficult application to those who are outside the United States especially as it pertains to EB2 and EB3 lawful permanent residency applications. They allow the consulate to block incoming immigrants who have been lawfully previously approved for permanent residency. We can only hope at this time that the business community will have the president reconsider his position on these matters and that embassies and consulates will reopen soon.


For those of you who are contemplating labor certification and lawful permanent residency through sponsorship, please ensure before commencing your matters that the sponsoring company demonstrates no less than $75,000 PROFIT per annum on their tax return to ensure confirmation of the proposed salary. It may be higher or lower depending on the prevailing wage. Note that assets owned by the company will not offset income losses.


You are no doubt aware that the EB 5 investment levels have increased as well as restrictions on the locations through the targeted employment areas. You’re also most likely aware that the market has been reduced by 2/3 due to the attrition of Chinese applicants. As such, adjudications seemed to be accelerating although we have no proof at this time. The IPO has been more responsive to our requests however we have also been very successful with the use of federal court litigation through the mandamus actions which force officers to consider cases which have been outstanding for more than 27  months.

The government delays have been long and unreasonable however we have no alternative at this time but to work with USCIS in individual situations. We have received good cooperation from the US attorney’s office which submits to the federal court judge in 60 days to receive an adjudication of pending EB 5 applications in 120 days.

We have also seen unreasonable requests for further evidence (RFE). These have been a test of the resilience of both the applicant and the law firm and we have won numerous cases by responding quickly and completely to these requests from the government.


Many of you no doubt have seen the effect of the public charge grounds final rule which require an extensive form I-944 demonstrating that the applicant or beneficiary will not be a financial burden to the United States. This document is very officer subjective and therefore requires as much accounting documentation as you may have available. We highly recommend structuring the response to this public charge form with engagement with a qualified certified public accountant in the United States. Do not minimize the importance of this form as again it enters into the subjective mindset of the reviewing officer. Some other considerations for overcoming public charge factors are: the age of the alien, his/her health, income, education, skills, public charge bonds, self-sufficiency options, and other support information which could be provided.


We are pleased to advise you that as of December 3, 2019 Portuguese Nationals are now eligible for E1 and E2 nonimmigrant visas. We look forward to the reopening of embassies and consulates around the world so that matters before them can be adjudicated. While the engagement has been signed, visa numbers are still pending to be issued to confirm the reciprocity.


Many corporations which are multinational or only in the United States seek to import qualified personnel to assist them in the development of their companies. Please note that the E1 or the E2 visa do allow such same nationality applicants to be able to come to the United States if they qualify as either executive, supervisory or essential worker qualification. They must of course have proper documentation to justify their request. The Department of State now has a new more rigorous protocol for making such determinations.


We are pleased to announce that our law firm has launched its new website: www.e2lawyer.com.. This website will be very active in the future to develop our presence in the E 2 marketplace in which we have been successfully active for over 40 years. We assist clients in ensuring that qualifications are met for the E2 visa such as inventory of the applicant in the United States, proper source of funds and path of funds, investment levels (London is now at no less than $200,000), efforts to show hiring of US workers or why they cannot do the job, short term assignments for essential workers, intent to depart the United States at some time,.


We also recommend to many of our clients to apply for a B1B2 visa to set up the business as it is a good precursor to the E2 visa in the future. The consul will see the approval of this initial visa and will view an E2 application with much more favor. The ESTA is not a proper platform for such business development.


We remind clients to please ensure that they file an AR-11 when changing addresses in the United States. This is essential to ensure the receipt of notifications from the government as well as any other approvals for which you may be eligible.


Our law firm was interviewed on January 20th, 2020 by a Québec newspaper and have concluded that the three principle reasons for immigration to the United States are as follows: quality of life, way of life, and professional challenges. No doubt you have your own motivation but these seem to be the principle reasons.


As you know, this November 16th, 2020 will be a very important national election In the United States. As such, USCIS has been very active in processing the swearing in of approved citizenship applications and actually naturalized 834,000 new citizens in fiscal year 2019. We do not doubt that this number will be surpassed this year due to the high interest to vote in this particular election.

Approved citizens of the United States are now facing extensive waiting periods for the issuance of a US passport. Please note that the passport is not essential to voting however it is essential for travel which of course has been seriously limited by the Covid virus which we are all experiencing. Please be sensitive to border blockages both international and domestic.


Those who have been seriously delinquent in payment of Internal Revenue Service debts may be subject to US passport revocation. Should you wish information on this particular law, please contact our law firm. 


The US Customs and Border Protection announced the introduction of a pilot program called the electronic security adjudication forms environment and will allow electronic filing of form I-192 application for advanced permission to enter as a nonimmigrant and form I-212 application for permission to reapply for admission into the United States after deportation or removal. This will reduce the waiting time significantly for those seeking to apply for a waiver online and allow the payment and electronic filing at designated ports of entry between the United States and Canada.


Please note that Canadians who attempt to enter the United States at an airport are deemed to be in a pre-clearance area and the pre-clearance agreement between the United States and Canada now allows Canadians to withdraw their application prior to entering the United States. This is because many officers will view their entry with suspicion and thus many travelers prefer not to enter the United States rather than provoke a denial.

The new authority also allows US border guards to deny Canadians their right of withdrawal. If the officer finds reasonable grounds to do so, even the request to leave in and of itself could be construed as reasonable grounds for a denial. US border officials will not be held accountable for any impropriety in denying such entry to the United States. It appears that this legislation has been sanctioned by the Prime Minister of Canada.


Many EB5 projects in the United States have been in a catch 22 situation. Whereas the business plans, as initially approved, have necessarily had to change due to the delays in adjudication of investor cases, this has impacted the proper evolution of the business. This is most unfortunate as it has created a tremendous backlog of approvals as well as placed the developer sponsor in an awkward situation with USCIS and investors. We are hopeful that USCIS will use some logic and flexibility in adjudication of the cases in these difficult times.


The US embassy in Paris has noted that the issuance of E2 visas and E1 visas for French Nationals have been reduced to 25 months duration as of August 2019 instead of the normal 60 months for which they were previously eligible. We will have to see overtime whether this will be corrected. It appears to be a political matter as French nationals, over the years, have made significant contributions to the US economy.


Note that the E2 visa can be extended for an additional period of two years from the date of admission provided that the individual’s passport does not expire before the end of the two year and if the individual is otherwise admissible. This means that an E2 visa holder may enter the United States just prior to the expiration of their five year cycle and hopefully be re-admitted for an additional 2 year period as confirmed on their I-94 arrival departure record card.


Many individuals are concerned about their potential tax exposure with the Internal Revenue Service. This is a very wise concern as any duration beyond 182 days per year in the United States is subject to a review by the Internal Revenue Service. There is also much discussion as to the application and use of IRS form 8840 which is the closer connection application. Some individuals prefer to file it to ensure that the IRS is aware of the tax relationship with their home country; others are concerned about applying with any type of form with the IRS and prefer not to file it. Please consult your certified public accountant to be sure that you do not fall within the US tax system unless this is your desired intent. There is normally a deadline of June 15 annually to file the 8840 form.


US employers and EB 5 projects can now expect onsite inspections from officers of USCIS or Customs and Border Patrol. These unannounced visits will determine whether applications submitted to their agencies are correct and accurate or if there has been any fraud or misleading information contained therein which is of course subject to criminal sanctions. Please note that each box in each form is a legal declaration and as such, must be completed accurately and completely. Please consult your professionals accordingly.


We thought that you would be interested in knowing some interesting statistics as issued by Florida Trend magazine for the state of Florida: In Florida the current population comprises of 3.96 million foreign born residents or 20% of the state’s total population. In Miami Dade it is more than 60% of the population which is foreign born. Of that, 53% of the foreign born are male, 47% are female. About 36% of the foreign born are 55 years of age or older; 57% of the foreign born are Hispanic with the main countries being Cuba with 22,000 immigrants, Canada with 19,000 immigrants, and Haiti 8,000 immigrants. This is for the years 2010 through 2014.

The main counties for Puerto Rican migration are Orange County with 61,000 immigrants, Osceola County with 29,000 immigrants and Hillsborough County with 23,000 immigrants. There is no doubt that the United States relies on Immigrants primarily for the construction, agriculture and hospitality industries.


We do not know where the current administration trend will lead the United States, however it is clear that we are a country of many immigrants and as such it needs to be honored and preserved. We hope that those who are in Congress will understand and maintain this policy of diversification.

We wish you all a wonderful and healthy summer and hope to be in touch with you on a regular basis.

Behar Law Group

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