Wednesday, December 23, 2009

The Culinary Implications of an Intellingent Immigrant Investor Policy

As we enter this season of extracaloric extravaganzas, it's interesting to note how ethnicities have crept into my holiday recipes over the years.  As much a product of my restless palate as the result of 25 years of constant immersion in new cuisines, the subtleties never escape me.  I wonder when it was that I first discovered that a few drops of sesame oil in the melted butter made the skin of the turkey a tad sweeter without imparting any Asian flavor.  When did I first curry the carrots accompanying a Christmas Day ham?  And when on EARTH did I ever figure out the desserts made possible with the once unheard-of Mascarpone cheese?

Adrian Ho is assistant editor for the Wall Street Journal's Leisure and Arts page and on December 11th, he wrote an incisive commentary entitled "Dude, Where's My Dumpling?"  In it, Mr. Ho, a Toronto-born Canadian of Chinese heritage, lamented the comparatively unimpressive Chinese fare he finds in New York City, having gotten used to extraordinarily good Chinese cuisine in his hometown.  He begins with the dumpling comment, but cites one specific example near and dear to me:

"The modest steamed barbecue-pork bun is, in my view, the pinnacle of Chinese culinary achievement.  At its best, the meat is slow-roasted, glazed with rich honey sauce and tucked into a sweet, pillowy white bun.  That the bread is fashioned like a fluff of cloud only beckons you closer to heaven.  Yet here in New York, most steamed pork buns are red-dyed remnants of swine stuffed in a soggy sponge."

Sounds an awful lot like the pork buns I've found in Miami.  Which is all the sadder given that, IMHO, New York's Chinatown offers the best Chinese food in the Continental U.S. outside of San Francisco. It certainly BLOWS away the Chinese food I've found in South Florida. Which begs the question: WHY is this the case?

Mr. Ho posits an intriguing theory: "The problem is that wealthy immigrants - Chinese or otherwise - have far easier options than to seek U.S. citizenship."  Essentially, he suggests that the creative base of ethnic cuisine fans out from the homeland and forms a diaspora, seeding new places with the best and brightest culinary creations...for the most part, outside of the U.S.  He points out that to qualify as an "entrepreneur immigrant" in Canada, for example, an investor need only shell out some $284,000 and commit to start a new business.  Three years later, that Canadian residency gets you a Canadian passport.

That, it appears, would explain (Sorry...couldn't resist.)

He says that in 1994, when Yours Truly was slogging back and forth 22 hours at a time on Delta between Miami and Hong Kong for a paltry few EB-1s and L visas, over 44,000 Hong Kong immigrants moved to Canada...and 13% of them were classified as "entrepreneurs!  Another 12% qualified as "immigrant investors".   Although the investment threshold is 25% higher today in Canada, it is still a lot less than the $500,000 required from an EB-5 Regional Center investor.  But, then again, we are talking U.S. residency...and that is still the sweetest prize in the basket, right?

Mr. Ho points out -- and we must agree -- that not all or even most of those Canada-bound Chinese of the mid 90s established restaurants.  However, it is that educated echelon of any given culture which most demands -- and appreciates -- excellence in their ethnic dining establishments.  In other worlds, an an entrepreneur class craves the best of their cuisine, even if they can't boil water.  Show me a San Francisco dim sum joint packed with Chinese businessmen -- say The Four Seas -- and I guarantee you the food will be excellent.  (The culinary antithesis, of course, explains why you so rarely see educated Mexican professionals wolfing down Triple Stack Nachos and a Chalupa at the local Taco Bell.)

If I was an immigrant looking to move my family to North America today, as much as I love Canada, it wouldn't be even close.  Knowing what I know and living what I've lived, if I had the funds and qualified as an EB-5 investor, I'd find a way to get my family into the U.S. Unlike the Hong Kong businessmen who in the mid 90s flocked to Australia and Canada, pooh-poohing the logistics and relative complexities of a U.S. Intracompany "L-1A-to-EB-1" maneuver, today's foreign investors can get the best bang for their buck, I believe, by securing permanent residency in the United States of America via one of the solid EB-5 Regional Centers created just for them.

The momentum, of course, speaks for itself.  I am a man on an EB-5 mission and, one day soon, I will be able to find that Perfect Steamed Pork Bun... somewhere right here in Dade County.

Merry Christmas to everyone!  Jose

Friday, December 18, 2009

New USCIS EB-5 Memo Replaces 2005 Guidance

Folks, our intrepid Amy Link forwarded this "hot off the press" new USCIS memo which replaces the 2005 guidance we've been relying up for EB-5 issues these past few years.  I haven't read it and won't till next week but I will update you when I do.  Don't even THINK about ruining your weekend with this stuff, it's holiday time!

Download Dec 11 EB-5 Memo

P.S. Remember last year and the whole new I-9 and other regs which were released right around this time?  Couldn't this wait? What is up with the USG "Scrooging" us over yet again...?

Wednesday, December 2, 2009

Staying Ahead of the Immigration "Aircraft"

I first learned to fly airplanes many years ago, an expression which I first found
to sound rather unusual would soon come to be a maxim inculcated into all future

"Stay Ahead of the

simply, "staying ahead of the aircraft" simply means the process of continual awareness of what lies ahead, not just in the next mile or minute but as far ahead as you can reasonably anticipate.  Another phrase was that one should "keep one's head
outside of the cockpit" (figuratively, unless you want to eat goosefeathers) to ensure that you could anticipate
anything which would affect your flight pattern and focus...anything Mother Nature, technology, or bumbling pilots could throw your way.

Early in my initial training, I learned about this first hand on the morning of what would be my first solo flight.  It was a beautiful day in Punta Gorda, Florida, and Greg, one of the coolest flight instructors on earth was in the right seat.   We were doing "touch and goes" -- a continuous looping pattern of landing, rolling, and taking off again, which is one of the key forms of initial aviation practice.  By this time I was flying the little Cessna 152 all by myself, and Greg was teaching me all kind of cool tricks, such as how to use the doors to turn the plane left and right in the event of a rudder failure...really cool stuff.

I was coming in for a landing, about 300 feet from the numbers, when I had my first "runway incursion"...meaning an unauthorized aircraft was on the runway.  The airport (at least back then) didn't have a tower, so pilots would self announce their intentions, keeping each other posted.  I'd been in pattern for awhile, announced my touch and go...and an airplane rolled out EXACTLY where I was just about to land.  Greg and I looked at each other with huge eyes and I immediately put the throttle back in full, eased flaps, and went about 50 feet over him as my instructor, a pious born again Christian, uttered the only expletives I would ever hear from his mouth.  As I ascended, the airplane on the runway started doing a 360 degree turn...scanning for other aircraft...while still in the middle of the runway!

Greg went BALLISTIC.  After failing to raise the offending pilot on the radio, he asked me to roll back to the office.  Turned out that the culprit was  an
eighty-something year old gentleman pulled out onto the runway on which I was
clear to land, oblivious of my imminent descent.  Turned out he "didn't like using the radio".  Go figure.  In any event, still somewhat startled by what had just happened, I was basically floored when Greg came back the plane, still bristling and said, "Ok, go, time for your solo.  You're ready."

I'll never know, as other trainee pilots do, whether the adrenalin and buzz of those next 6 or 7 touch and goes were purely do to my exuberance at flying solo or leftover from the hair-raising octogenarian-triggered emergency.  But it sure felt good.

immigration law is a lot like "Staying Ahead of the Aircraft", and that's not as tangential a stretch as you might think.  When a lawyer does his or her job properly,
he or she is able to anticipate issues, problems, and even some semi-unforeseeable
circumstances which, if properly anticipated, can be more swiftly
everything else, preparation and awareness are the main issues. 
This does not just mean taking clear client intake notes (enumerating not only
the specific personal data of the client or prospect, but the annotation of
tactical strategies and practical issues which could arise in the course of
adjudication).  It means using our creative lawyering skills to anticipate, re-route, and address problems...BEFORE they arise.

One real example:  routine family
visa case – clearly approvable – where the petitioner had been unemployed for a number of months.  A professional with a stable work history, 
there did not appear to be any issues involving solvency.  Nonetheless, because of the very strict
requirements of the Affidavit of Support imposed by the USCIS, we were
    Anticipating this, supplemental affidavits of support – which
really opened up a whole new can of worms (for complex reasons)-- were prepared but not submitted.  But we had them ready in the event
questions arose at the time of the interview.  They DIDN'T, but if they HAD, it would have been resolved then and there...without a miserable client, more expense, a second appointment, and all the resulting hassle.

immigration law, "Staying Ahead of the Aircraft" means staying awake and aware to your client's specific and factual circumstances through reliable and continuous communication, awareness of evolving regulatory decisions, and a good understanding of the particulars of the client's plans, family, and objectives.

P.S. I've gotten a couple of you asking me "what happened to the Miata cam?"  Apparently the USG has gotten wind of my iconoclastic, immigration-dogma-smashing plans because Customs has intercepted my $15 USB mic shipped from the UK and won't release it.  Stay tuned.

Monday, November 23, 2009

Deferring the Dream: Alternative U.S. Immigration Strategies

One of the recurring points when I speak with would-be investors abroad has to do with the timing of their U.S. immigration.  The vast majority are interested in securing U.S. permanent residency, via EB-5 Immigrant Investor status or another category...but just not yet.  Instead, what they seek is a Plan B, a back pocket "Get Out of Jail Free" card (sometimes figuratively...other times NOT!) which gives them the peace of mind they want TODAY via the creation of a structured move to the U.S. tomorrow.

Most attorneys, inside-the-box-thinkers we are bred to be, will tell you that you cannot have your cake and eat it, too: because the securing of U.S. permanent residency requires the present INTENT to immigrate, you can't simply get your permanent residency approved then turn around and leave the U.S. and go home (even with a reentry permit, except in very special circumstances.)  And that assertion is correct based as far as what the law says.  But the truth is that the law permits creative structuring of immigration timing in the permanent residency process, and an outside-the-box immigration attorney can create solutions which achieve the particular immigrant's objectives while adhering strictly to the letter of law.  Here is a great example of how one past client deferred his immigration...and legally saved millions of dollars.

Jorge is a national of a Latin American country and has been residing and working in an offshore island known for its wonderful tax laws.  His country of nationality does NOT have a worldwide income tax regimen, so he is in full compliance with its laws; his place of legal residency - the offshore haven -- taxes neither income nor estate.  In short, he was in utter tax bliss..until he decided to retire to the U.S.

Jorge's son is an adult U.S. citizen, making the IR-5 category an easy path to permanent residency for Jorge and his wife.  One huge problem: the minute they are approved as U.S. permanent residents, they become subject to worldwide taxation AND estate taxation.

In this particular case, although I could have gotten Jorge and his wife permanent residency in a matter of months, I didn't: instead I directed them to not one but two tax attorneys.  The first lawyer practiced in his place of residency, the tax haven.  The second, in the U.S.  Why two?  Well, because Jorge was NOT subject to U.S. tax laws at the time we started planning his immigration, I wanted the offshore tax lawyer to first address the numerous tax planning issues from HIS perspective...not restricted by U.S. tax laws which did not yet apply to the client.  (Think about it: the U.S. tax attorney is limited to giving advice under the U.S. tax regimen...his span of options is considerably more limited.) Next, I wanted to be sure that what the offshore tax counsel structured would comply fully with U.S. tax laws.

In this case, we deferred the immigration process over a year in order to get Jorge's properties and his worldwide assets in order.  Through careful planning, the tax attorneys were able to save Jorge several million dollars in income taxes as well as create a durable private placement insurance solution which will, at the time of his death as a U.S. tax resident, cover his estate tax responsibilities and allow his heirs to receive the bulk of his estate...intact.

Whether it's for tax planning purposes, to let the kids finish school abroad yet secure their residency in the U.S. before they turn 21, or whatever, the point is that solutions exist.  If this sounds like the kind of creative lawyering you want on your team, you know who to contact...(-;

Thursday, November 19, 2009

My Name is Jose Latour, I am a US Citizen...and I Am Uninsured

Shocked?  Don't be.  We are legion, we are legal residents and citizens of the country, and we are the reason why nothing less than a comprehensive restructuring of the present healthcare system will address the issue of public health in America.

Yes, I am uninsured...sort of.  The truth is that Roger, Linda and Regina have an excellent health insurance plan for their employees and the firm is one of few which puts its money where its mouth is as far as this critical benefit.  I have my shiny new card and I am covered...sort of.  You see, I suffer from high blood pressure.  I've had it for years and the medication I am on works perfectly.  But it is an expensive medication and according to my doctor, I will be on blood pressure medication for the rest of my life.  Hence the dilemna.

Along with my insurance card welcoming me to the new plan, I received a rather convoluted letter which I had to read several times before I was clear on its meaning.  The letter said that I had a "pre-existing condition" and that, as such, I would not be really TRULY insured until July of 2010.  Stunned, I immediately looked up the applicable regulations and guess what we didn't know: even an established corporate group plan which cannot refuse to insure employees can STILL effectively deny coverage for the first year for any "pre-existing condition" such as my high blood pressure.

So what does all this mean?  Well, for one thing, it means that I'm on my own for my pricey BP medicine till at least next July.  I could almost live with that if that was it.  But the way I read the law, it appears that anything even remotely associated with my hypertension could mean I am not covered by the policy the firm and I are paying good money to keep in force.  ER visit triggered by unexplained surge in BP?  Not covered.  Stroke?  Sorry.  Heart attack, for which hypertension is invariably a key link?  Fuggedaboudit.

So here I sit in my nice office with my degrees on the wall, playing by the rules, drinking my Slimfast, taking my pills and knowing that if the you-know-what hits the fan, I'll be as uninsured as the next poor guy on his home-made raft, reaching for a mangrove, trying damn hard to get a dry foot planted on the Home of the Free and the Land of the Brave.

The smug attitude of bloated Congressman with colossal pensions and insurance coverage eclipsing that of any Fortune 100 executive neither impresses me nor does it confuse the fundamental truth: if a guy like me can't afford to get sick in America...

Who can?

Tuesday, November 17, 2009

Back in the Biscayne Saddle- Caracas Epilogue

Got back from Caracas Friday night, spent the weekend moving, had to stay home Monday because it wasn't finished...and now back in my office on Biscayne Boulevard, staring at a formidable number of emails.

That's one thing that you can't avoid with these international trips: no matter how much you manage to answer emails and return calls while abroad, the real "work" stays at a standstill while you are gone...and you return to a LOT of stuff.  Sigh.

The good news is that we are very busy, and being very busy is a good thing to be during these times, right?

Sunday, November 15, 2009

Back from Caracas With a Serious EB-5 Buzz

Things went very well in Caracas for Roger, Carlos, and me.  Our visit this month focused on the "referrers"...the relationships we seek to cultivate with the best lawyers, banks, and financial advisers in Venezuela.  We learned that there is a GREAT DEAL of baloney being promised to would-be EB-5 Immigrant Investors:  impossible returns, "guarantees" (which would violate the EB-5 visa requirements, even if they were not lies) and bogus time frames.

In a way, this mountain of disinformation is good because we are coming across like choir boys (sorry, Roger...uh..."Cantors Lite"?? (-;) with our pragmatic assessments, disclaimers, and straight talk. 

There is this remarkable thing that happens, this secret that eludes so many folks in our potentially dignified and noble subspecialty of law practice...If you speak the truth, they hire you. 

Will wonders never cease? (-:

Wherever you are, I hope your weekend is proving as sunny, crisp and beautiful as it is for those of us here in Miami.  J

Saturday, November 7, 2009

Audio Solution to Miata Cam...

It's the weekend and I don't often blog but had to share this with you, especially those of you who actually suffered through the horrible audio quality the other morning...check this out: I found a USB lapel mic in England on eBay...

USB Lapel Mic for Future Video Blogs

Brace yourselves for more EB-5 Investor Visa stories and musings via my terrifying morning commute.  Now that the weather is starting to get really nice in South Florida, I'm working on rigging up the Lambretta...

The Immigration Insider Scooter-Cam - coming soon!

Have a great weekend and GOOOOOOO Gators!

Thursday, November 5, 2009

Econometrics, EB-5 Regional Centers, and Job Creation[VERY POOR AUDIO]

Folks, this second attempt at a video blog was shot in my Miata on the morning commute.  While I'm okay with the video (having come to terms with what I actually look like at 48 as opposed to what I THINK I look like) the audio is horrific.  I still posted it because there are a few points who some might want to hear but trust me, the audio is absolutely horrific and annoying due to the little car's vibration, so skip it unless today's topic is of serious interest.

BTW, thanks to all of you who gave me positive feedback regarding the concept (and not the execution) of the first video blog.  The numbers on the blog tripled yesterday, although it could simply be the result of people emailing links to each other and saying "you have to see how gray Jose has gotten".  Whatever...thanks for the feedback regardless.

Footnote: the Miata overheated (again) as I was waiting for a train to pass in Miami Shores and Melissa rescued me.  More soon and I'm working on the audio as well.

Wednesday, November 4, 2009

Signs of Old Age...

Okay, so this is how you realize you've been doing something for a loooooooooong time:

  1. You are trying to find the answer to a cryptic question you think you once had figured out.

  2. You search on Google.

  3. You promptly find a long-winded article you wrote on the subject 3 years ago as the 4th link on your Google search, only to realize that the question was as cryptic then as it is now...


All that being said, here is the question and answer for those of you who have better things to do than read a big article:

THE QUESTION: How large and established must an employer be to file an H-1B petition? Can a company petition for its owner as an H-1B?


It depends...(-:

FOLKS: please bear in mind that a lot of what was relevant in 2006 is not so today and new worksite issues have arisen.  Don't take the following as gospel but more as an overview of the issue, okay?  J

-------------------------2006 Article begins------------------------

How large and established must an employer be to file an H-1B petition?


Written by Jose E. Latour   
Sunday, 31 December 2006
How large and established must an employer be to file an H-1B petition? Can a company petition for its owner as an H-1B?

Okay, this is one I "sort of" tackled in a prior FAQ discussion, but it's time to take the bull by the horns and resolve this once and for all. Once again, I am running off at the keyboard more than most, but I am doing so because this issue is critical, particularly to the flood of clients we are getting which are foreign-national-owned IT startups in burgeoning software consulting fields. For those folks, reading this carefully is worthwhile. For the rest of you who want a quick answer, skip all my blabber and go down to the bulleted points below, skimming the rest...that should get you the quick answers you need. Okay, here goes the treatise...

First, a little background: when I left the Foreign Service and started my private practice, I knew A LOT less than I thought I did about employment based visas. As a Visa Officer in Mexico and Africa, I had adjudicated thousands of visa cases, and felt pretty comfortable saying that I knew the law well. WRONG. As a busy Visa line officer, you are facing an astonishing workload and a million other pressures associated with living in a new culture. While I was conscientious about reading the updates, I didn't have the time to dig and analyze. I found out the hard way when I started private practice that answers to questions like this FAQ just were not anywhere to be found. So, in my innocence/ignorance, I did what I could...

Among the first H-1B's I filed in those first months of 1990-91 were small companies, because that was all I could find as clients. I mean TINY, in some cases BRAND NEW companies. Rebuttals came from the INS but, lo and behold, they got approved. I have clients that think I was filing these and getting these approved because I was a really good attorney; the truth: I was a really INNOCENT attorney! Soon, a small group of AILA members and me were becoming known as able to get small company H visas approved where other, more established firms would not TOUCH these cases. Finally, around 1994, I was speaking at an AILA national convention and I was challenged point blank by a VERY established, reputable immigration attorney. His position: you MAY be getting these approved via INS ignorance, but these cases are NOT within the scope of standards defined by the law. So, with the white glove ceremoniously whacked across my cheek, I set off to prove my position.

I wrote a letter to Jacquelyn Bednarz, Chief of Non-Immigrant Visa Operations (You may recognize her name: in prior articles on I have unabashedly raved about Ms. Bednarz as a beacon of light in an often impenetrable Washington INS bureaucracy). I got a call from her office saying that, coincidentally, another attorney had asked the same questions about small company H-1Bs and "Self-employed" H-1Bs, and that the answer was forthcoming and would be shared with Interpreter Releases, the weekly bible of immigration attorneys. Sure enough, I was right: when the response was published, Ms. Bednarz responded (paraphrasing her):

There is nothing in the regulations to preclude a corporation or other legal entity as the "employer" from petitioning for an individual who is a shareholder in the corporation. However, a self-employed individual could not petition for his or her own H.

Vindicated, and resisting the urge to call up my colleague with a bucketful of I-told-you-so's, I realized that given this guidance -- the position the INS had taken consistently with the small company H-1Bs I and other attorneys were getting approved -- begged another question:

"Just exactly how big and established did a company need to be since the law and regulations did not set minimums?"

The answer has never been, to date, provided by INS, but the responses on adjudications over the years have centered around a central issue: the company's ability to pay the wage. The cases which were approved most quickly were those with either the most employees (establishing a history of paying wages) or megastartups, with skyrocketing growth from day one. It was like the INS had informally adopted an adjudication standard consistent with what the DOL is supposed to do with labor certifications: confirm that before the case is filed, the employer has the ability to pay the offered wage from day one.

So, with that published, the number of small company Hs filed went through the ceiling, and the rest of the immigration community which had been skeptical joined in the filings. Along with those of real, up-and-coming small companies were a barrage of really weak, this-will-never-fly type cases by attorneys more interested in collecting a fee than in helping their clients...stuff no one legitimate would touch. So INS did what it had to do: began denying these cases. One would think that, ultimately, an appeal would clarify these issues, even if the appeal upheld the denial, but it never happened. Small wonder: the cases denied were for tiny companies who could not afford the money nor the two plus years of appeal went on and the standards continued to be vague.

Up until about just recently, our firm was still routinely accepting cases from small companies with brief histories and small earnings, and getting them approved. Currently, we have one such case pending, and it was returned with an INS request for further evidence involving the ability to pay wage. I should have seen it coming: since around September, I've probably gotten a dozen plus e-mails from H-1B employers horrified to learn that their attorney had the case denied. When I inquired, the fact pattern was the same... The INS taking the position that the job wasn't "real" but, rather, a manipulation of the H category for self-employment purposes. But WHERE was the legal reasoning behind this? I just don't see it. I suppose the part that bugs me the most is that in the mountain of employment visa legislation we have seen this decade, there has not been a single item changing what Ms. Bednarz confirmed and what a few of us knew all along. Why the increased scrutiny? Was it because America was more anti-immigrant? Is it because the India priority dates are backlogged and more and more IT professionals are looking for alternatives and trying to put their futures in their own hands -- via their own companies -- instead of sticking with the large national firms? Is Bill Gates behind all of this? And why the "trampoline room," while we're on the subject of Mr. Gates? HUH?!

Sorry. I digress. Conspiracy theorists, knock yourselves out, but please spare me the e-mails!

Anyway, as a result of all this, our firm has set these minimum standards for H-1B case acceptance:

  • The employer must have a six month history of profitable activity.
  • The employer must have at least three full time U.S. workers.
  • The employer must have provable contracts indicating future activity.

Of course, these criteria are not static. If I get a month-old, two man company with a $2,000,000 contract on Microsoft letterhead for the development of a new protocol, you can bet your H we would not turn that away... These are sort of general critiria. (ATTORNEY READERS- if your firm has "minimum size" H employer policy, we would love to hear from you.... Tell us what the policy is, and your rationale, since you may think I am way off base....)

So, there's your semi-answer...sorry it isn't more clear but, hey, this is immigration practice, not something precise and clear like quantum physics. I will leave you with...


  1. The smaller the number of employees, the longer the history you need; the shorter the history, the more U.S. employees you had better show.

  2. While contracts for future services are fine, they will NEVER substitute for a history of verifiable income.

  3. If the company is filing for its shareholder, the standard of company strength is higher than if the same size company is filing for someone not "related" to the company.

  4. The INS will not approve petitions for small companies engaged in the speculative hiring of professionals ("body-shopping"), particularly in the IT and health fields unless their financial strength and history can be proven. Once the regulations defining the new "no bench" provisions are finalized, you can count on this being an even tougher standard for such companies.

  ------------------end of 2006 article-------------------

Great Article from Fragomen re ICE Petitioner Site Visits

I wrote a few days ago about the sudden surge in unexpected site visits for small and medium sized companies which have been petitioning for non-immigrant workers.  In researching this, I found a GREAT article which was recently published by brilliant folks at Fragomen.  I encourage you to review this and, for my immigration attorney readers, I especially suggest sharing Fragomen's link with any clients you might have who could conceivably recieve an unexpected visit from the ICE folks.

To the folks at Fragomen: thank you for making this information available online to both your clients and your colleagues!

Thank you, thank you...

...for having the courtesy to comment on the video blog via my personal email as opposed to trackbacks.  All the suggestions regarding audio, camera placement, liposuction and Botox are being taken under consideration.

Perhaps after you are all over the Jose the Vidiot part of this, I will actually start getting substantive commentary.  TTFN...(-;  Jose

Immigration Insider Goes Video - An EB-5 Investor Visa Update

Tuesday, October 27, 2009

Your Enforcement Dollars at Work

Listen up: recent chatter on AILA InfoNet as well as recent reports suggest a new targeted effort aimed at small company NIV petitioners.  Not only have there been recent adjudications which seem to ignore all prior policy on H-1Bs issued by companies in which the petitioner has an interest, but ICE is actually knocking on doors and investigating U.S. companies petitioning non-immigrant workers.

Makes you feel safe, doesn't it?

With the colossal immigration problems facing this country and the desperate need for comprehensive immigration reform, is it really sensible to deploy investigators to inspect on AMERICAN COMPANIES because they've gone through the giant ordeal of filing a non-immigrant visa?

What a waste of money for taxpayers...for everyone.

Monday, October 26, 2009

EB-5 Jeebies- Regional Center Investment Misinformation Abounds

Look, I'm TRYING HARD here, guys.  I'm not really interested in naming names or getting people angry but I'll tell you what: if some of the more BALONEY-laden EB-5 Regional Centers and lawyers don't get a grip on the nonsense they spreading, I'm going to start blogging about them.  How's this Miami Herald quote from a developer pitching the EB-5?:

"In the worse case scenario, this project will make a lot of money"  In the worst case scenario, the investor will lose his or her money, not get his/permanent residency, have to leave the U.S, and transplant their families back to their country after being led to believe that there was "no risk".

I first noted this whole thing when we were in Venezuela a few weeks ago.  Turns out a lot of other self-proclaimed EB-5 attorneys are going down there...and other Regional Centers, some approved, some not approved.  By day three in Caracas it was pretty clear to me that the rampant disinformation we were constantly correcting among our prospective clients was not the result of "I read it online so it must be so" Syndrome but, rather, the result of information gathered by folks at our seminar...from OTHER seminars presented by OTHER immigration attorneys and Regional Center marketers.  So let's just cut through the nonsense and clear up a few things:

    -The higher the promised return, the higher the risk.  That is a fundamental fact of investing. Anyone who says otherwise is lying.

    -Just because an EB-5 Regional Center investment predicts a teensy weensy annual return does not necessarily mean that the investment is "safer".  It could just mean the project managers are taking a big chunk of profits away from the investors.

    -Exit strategies matter.  Don't believe otherwise.

    -Yes, there are legitimate real estate opportunities in the belly-up U.S. real estate market, but just because prices are low does not necessarily mean it is a "great time to invest".  It depends on the specific property, plan, and investment managers.

    -Developers are not investment managers, investment managers are not investors and immigration attorneys are neither.

    -Banks make money when they lend on good projects.  While the banking sector has indeed reacted miserably to the credit crisis, that in and of itself does not create an "opportunity" for private capital.  If it was that easy, the banks would be lending.  With reward, put simply, comes risk.

    -You CANNOT "cash out" on your EB-5 investment in "two years or less" AND have your green card.  Legally impossible and the people saying this are lying through their teeth.

    -Think about it: $500,000 and 10 new jobs.  That's $50,000 per job, right?  Darn near impossible. The intelligently-structured Regional Centers are combining EB-5 funds with private U.S. equity and other non-EB-5 sourcing to insure that the per-investor job numbers materialize.

    -Not all Regional Centers are intelligently structured.

    -The initial petition I-526 looks at investor eligibility and origin of funds; the I-829 petition which makes the residency  of the EB-5 investor permanent focuses on confirming the job creation and fulfillment of business plans.  Just because a Regional Center is getting the first approved does not guarantee that the removal of conditions will sail through.  In fact, the catastrophic failures of EB-5 visas in the 90's mostly involved approved I-526s with I-829s subsequently denied.

    Look, folks: there are some excellent and intelligent EB-5 Regional Programs out there, as well as some excellent attorneys working with the EB-5 category.  But the abundance of pure nonsense being fed to prospective investors both in the U.S. and abroad is making hard for folks to learn the truth.  And so I blog.

    Like the guardian Knight of the Templar protecting the Holy Grail said to Indiana Jones:  "Choose wisely".

Friday, October 23, 2009

Not All EB-5 Regional Centers are Created Equal

In the past few months, I've had the opportunity to meet with a lot of folks with approved Regional Centers.  In the process, I've asked a lot of questions and spoken to some of the most sophisticated real estate developers, portfolio managers, and financial minds in the country.  I've learned a few things and I think they might be of interest to those of you who are considering an investment in an EB-5 Regional Center, as well as those of you who represent such potential EB-5 investors in one capacity of another.

For the purposes of today's blog, I won't name names.  I have in the past and I most certainly will in the future.  In fact, the more I learn about EB-5 Regional Centers, the more comfortable I feel with some...and less so with others.  So while I'll expand and get more specific in the coming days and weeks -- and will not doubt make some folks really angry (hey, it's been awhile) -- let's start with a pasty and generic look at three fundamentals I've observed:

1- The Government has approved and is approving a LOT of EB-5 Regional Centers.  In the second half of 2009, the number of approved EB-5 Regional Centers has soared from 40-something to over 70...pretty staggering when you consider that it took about a decade and a half for the first 40-something to be approved.

2- The rapid approvals have caught many of the new EB-5 Regional Centers unprepared.  Whether this is a function of unexpectedly fast processing or simply slow-moving entrepreneurship, a very significant number of the newest centers have nothing specific to offer EB-5 Investors right now.  It works like this: once an EB-5 Regional Center is approved, then and only then can they start offering an investment and comply with all the disclosure requirements relating to securities laws.  These are not prepared overnight and, in an ideal world, the RC team is working on the initial legwork during the pendency of the USCIS adjudication.  My impression (and that's all it is because I have only explored a fraction of the new centers) is that a lot of these newer centers were caught off-guard and are now scrambling to put together projects.  (If you are an investor, would you want your investment team to be hurrying to throw something together?  Not me.)

3- The better newer EB-5 Regional Center models (and some of the veteran ones) are increasingly debt-based vs. equity-based.  This means that in the pooling of the investor funds, the debt-based models operate as lenders to specific projects. Because the loans are often linked to governmental or quasi-governmental borrowers, bond secured, and finite --these structures, although more conservative on returns than the equity-based models, are increasingly appealing to many prospective EB-5 investors.  But don't get me wrong - some of the most successful programs are equity-based).

I guess the most important thing for EB-5 Regional Centers to keep in mind as the momentum continues to build is the trinity of top considerations echoed consistently, in the same order of priority, by the dozens of prospective EB-5 Regional Center investors I've spoken to recently:

  1. Assurance of the approval of the permanent residency

  2. Security of the underlying $500,000 capital investment and

  3. Return on investment

Things are getting complicated and my impression is that very significant distinction exists not only between the fundamental structures of the new EB-5 Regional Centers, but between their underlying philosophical approach to how an EB-5 Regional Center should operate.  Those which understand the aforementioned trinity of priorities will inevitably lead the pack.


Wednesday, October 21, 2009

Taxation Without Representation

I've been representing foreign investors in the U.S. for 18 years.  So have many of my colleagues.  So why is it that the notion of "tax planning" is such a conundrum for most immigration attorneys?  The truth is that we, as immigration counsel, are "programmed" to steer most folks to legal permanent residency.  There are valid reasons, the primary one being that the majority of clients seek such status.  But a significant (and growing) number of foreign investors in the U.S. wish to preserve their foreign residence as primary...and have no desire on becoming subject to taxation in a country in which they do not intend to live permanently!

It seems like on an almost-daily basis I'm approached by a client with substantial offshore assets who is neither interested in U.S. permanent residency nor in abandoning his home country...but is being advised by immigration counsel that getting a green card is their sole option...not so!

I am hardly an expert on international taxation but I know the basics:

  • whether you like it or not, the U.S. taxes worldwide income on anyone who is a "tax resident" within the meaning of the Internal Revenue Code

  • tax residency is automatic for persons who get permanent residency

  • tax residency is triggered by so-called "physical presence" tests which determine tax status based upon the amount of time a foreign national has been physically present in the U.S.

  • In addition to worldwide taxation of all income anywhere, U.S. tax residency means estate taxes apply for assets worldwide (unless legal protective mechanisms, such as trust structures, have been established.)

All this adds up to one thing: for high-net-worth foreign nationals, a complete understanding of the income and estate tax implications is essential BEFORE they get their green card...or before they establish tax residency via physical presence.

What are the implications of this for immigration counsel?  Several important considerations:

  1. It is critical to insure that the client receives competent tax counsel both in his/her home country AND in the U.S....before U.S. tax residency is manifested and the individual is subject to U.S. tax laws.

  2. On many occasions, it is necessary to defer the U.S. permanent residency -- even prolongued presence in the U.S. -- until all of these issues are resolved under a tax planning arrangement most prudent for that individual client.

It's a shame to see the colossal financial damage which can occur to clients who have been given limited options by immigration counsel.  Once you are a resident like the rest of us, you have to cough it up, and that's what the law requires.  Before you are U.S. tax resident, however, you have a number of legal tools and options with which to minimize the financial impact of coming to the U.S.

Perhaps as immigration counsel we should step back and look beyond the next immigration step to consider the client's big picture.

Tuesday, October 20, 2009

To "L" in a Handbasket

A formidable number of weak L-1A visas were filed in Venezuela in the past decade, and it is small wonder the U.S. Nonimmigrant Visa team in Caracas casts a wary eye upon Intracompany Visa applications involving:

  • a new U.S. enterprise with low job creation numbers

  • a comparatively small Venezuelan parent/affiliate

  • an entrepreneurial principal eager to see what he or she can do in the world's largest economy

To be blunt, the fraud was epidemic in the late 90's, and the only reason the situation has somewhat quelled is because most attorneys have come to belive that, with the above fact pattern, the consulate would likely deny the visa, notwithstanding the approved I-797.  (Not so, but more on that later.)

For me, this situation once again became a timely topic when we recently visited Caracas to discuss the E-5 Regional Center option with prospective Venezuelan clients.  As I mentioned in earlier posts, interest was strong -- how much of it was curiousity and how much was actual immigration planning remains to be seen.  But judging from the continuing buzz and follow ups, we certainly were not wasting our time there.  One recurring question, however, presented itself time and again:

"If I am ready to go to the U.S. now but the EB-5 approval will take close to a year, what can I do ?"

The answer to this question, of course, lies squarely in structuring of an appropriate non-immigrant visa.   But there are problems:

    -Venezuela does not have a treaty of trade and commerce with the U.S., so the very useful E-1 and E-2 visas are not an option.

    -Student visas, even for language studies, are subject to the Section 214(b) provisions requiring nonimmigrant intent...tough to prove when you have a pending EB-5 Immigrant Investor petition.

And so, we go back to the old reliable, 214(b)-free L-1 and H-1B (i.e., neither is subject to the applicant proving non-immigrant intent)...but they too have their problems:

-the H-1Bs remaining are flying the coop quickly and with a recovering economy, who says the 65,000 visas won't disappear on that next April Fools morning, as has been the norm till this past year?

-the L-1 abuse has left our legitimate small-company L-1 prospects in Venezuela wary and fearful of consular denials after getting their USCIS petition approved.

So here's what we are doing:  we are filing those small-company L-1s armed to the TEETH with bona fide evidence of legitimate business activity both in the U.S. and abroad, pre-empting the line of inquiry with powerful proof of the legitimacy of the enterprises...large OR small.  And we are getting them approved.

Sometimes showing the consular officer the Big Picture is all it takes...revolutionary!!

Wednesday, October 14, 2009

Broken water or Broken Visas...

When Roger, Melissa, and I got back to the office Monday from our incredibly exciting EB-5 Immigrant Investor seminar in Venezuela, I got a taste of the days of old.  We'd left Wednesday and returned Sunday afternoon, and none of us had gotten much sleep during and since the trip.  And despite the presence of a great team on top of the workload, upon our return to the office we were each bombarded with that unavoidable crush of activity which befalls each busy attorney who dares leave the office for a few days. 

I thought back to my own business immigration practice, which I sold six years ago to my partner and friend, Lorenzo Lleras.  Lorenzo had joined my firm right out of law school and had grown to manage the firm far better than I ever had by the time he bought me out.  But even with our cracker jack team and Lorenzo at the helm, Monday-o-phobia was part and parcel of my reality for many years.  I travelled a lot back then, more than immigration attorneys normally do, and our offices in Hong Kong and Manila were a full day's flight away.  The trips had to be for at least a week, week and a half, and it was before communications technology had evolved.  So my return to Florida, despite everyone's best efforts, invariably involved a bit of chaos.

I would get very frustrated.  I would say "But I'm not an obstetrician who has to run to the hospital in the middle of the night to deliver a baby...I don't even do deportations!  How can there be so many "emergencies??"  Of course, in fact, the actual emergencies were rare.  But when clients want to speak to "the man" (or "the woman"), no amount of delegation to even the most competent folks will ever suffice.

Seriously, when you think about it, the obstetrical analogy is hardly off-base:  like the newly pregnant parents,folks come to us with the growing "embryo" of a life in the U.S. seeded in their plans.  We sit here and structure their visa, advise them of their options, and send them to specialists (pre-immigration tax advisors instead of sonogram technicians) to insure the health of their "pre-natal" "baby".  We prepare them for the process (our version of LaMaze) and for the visa interview (which many compare to the birthing process in terms of excruciating pain.)  Finally, with the family here and visas in hand, the dream begins as they leave our office with their new business enterprise, hopefully, bundled in a blanket of wise counsel and high hopes.  (I won't even get into the even more accurate but disturbing parallel of what happens when our best counsel ignored and the best laid plans "miscarry" as a result of predictable obstactles of which we warned the client; invariably heartbreaking to us.)

So, during these years, I tried in vain to be "present" in the Far East offices without having to travel, but there was just no way.  I have always embraced technology, but this was WAY before Skype, way before global cell access...even before email was standard in business communications.  I remember spending thousands to buy a set of then-high-tech video phones, thinking I'd be able to video conference and save a few trips.  All Chinese and Filipino clients looked the same, probably as I did to them: two inch tall gray blobs and a poor voice signal, degraded by the routing of video through phone lines never designed for compressed data.

I used the phones as bookends for awhile, tried unsuccessfully to sell them without reserve on eBay, and, as I recall, they are now part of an artificial reef somewhere off Key Largo.

Today at Chez Roger, things are different.  I Skype with clients.  I scan business cards in with OCR software.   Our state of the art client management system is available anywhere we can get online.  But the essential physical presence of the attorney - that "give a damn lawyering" I wrote of several days ago -- is still the buckstop.

So by late Monday afternoon, Melissa had had five client appointments, Roger about a billion emails, and I was whooped.  (I very rarely get tired.)  As I was leaving the office, I went to say goodnight to Roger and he just looked at me and said something to the effect that we were paying dearly for our two-and-a-half-business-day absence.  In fact, there had been no emergencies or even pseudo-emergencies, and, besides, Linda and a veteran corps of business immigration and litigation attorneys had remained in Miami to deal with anything urgent.

As I walked down to the car I realized that whether it involves broken water or broken visa situations, "emergency" is defined in the eyes of the beholder.

Tuesday, October 13, 2009

TEA Time in the Florida Keys

No, I’m not talking “tee time” at Ocean Reef (or “tea time” at Ocean Reef, for that matter.)  I’m referring to the EB-5 Investor Visa definition for TEA: “targeted employment areas”.  A “TEA” refers either a geographical area which has an unemployment rate of at least 150% of the national average OR a rural area.  Of the 10,000 annual visas set aside for EB-5 Investors, 3,000 of them are set aside for TEA cases.  Why is this important?  Because TEA designation drops the required EB-5 investment amount from $1 million to $500,000.

And, as it just so happens, that wonderful paradise right in our own South Florida backyard, the Florida Keys (except for the City of Key West) meets the TEA definition, from the stretch connecting Key Largo to the tip of the Florida peninsual all the way to the city limits of the funky little city perched at the southwestern tip of my favorite archipelago, only 90 miles from the island where I come from…Cuba.

And this, my savvy readers, is a good thing for both the Keys AND prospective EB-5 Investors.  You see, the economic troubles we’ve seen in South Florida have not spared the island paradise, and just today The Miami Herald reported on the boom-to-bust reality of luxury developers who scarfed up campgrounds, trailer parks, marinas and dinky motels in hopes of turning them into uber luxury destinations and cashing in…only to watch it all fizzle.

According to the Herald article, “from Key Largo to Key West, at least 18 pricey projects screeched to a halt in 2007 and 2008.”  But it isn’t just about developers left holding the bag, as the sympathy factor would be pretty weak…it’s about what those developers left behind in their rapacious appetite for profits. Trailer parks that once housed retirees have been leveled and cleared.  Mom-and-Pop marinas where shuttered as developers tried unsuccessfully to change zoning density numbers with a wary Monroe County.  In the words of the Herald:

“Today, the legacy of the Keys' land rush is a list of foreclosures, bankruptcies and litigation, some of it so complicated that developments have been left in indefinite limbo. One of the biggest: the $220 million Marlin Bay Yacht Club in the Middle Keys. “

And it’s not like these developers were flush with cash.  They did exactly what we, as a nation of homeowners, did: they borrowed.  And borrowed.  And borrowed some more.  In fact, the Herald says that based on public records and disclosures by developers, those 18 high end projects previously mentioned in Keys collectively borrowed nearly$1 billion.    (Can you even fathom  the total figure if you add in all the speculative single family home construction which has failed just as spectacularly?)  The best quote in the article sums up the perspective of those who, like me, have lived or still live in the Keys:

``The rat bastards bought up our property and took our affordable housing,'' said backcountry fishing guide Capt. Dennis Robinson.

And so, like a knight in shining armor, the possibility of EB-5 investments stands as the most intelligent, feasible, and exciting recovery solution for both job creation AND affordable housing in the Keys.  TEA designation for Monroe County – again, excluding the City of Key West – permits those two most powerful benefits an EB-5 Regional Center can offer: a pool of diversified private investment funds combined with direct and indirect job creation in an area where tourism drives the economy…and tourists drive over the sea.

Who’s in?  Email me and let’s get busy in the Keys.

Monday, October 12, 2009

EB-5: It's About Job Creation, Stupid

Our immigration seminar in Venezuela went off without a hitch and we met some great folks.  Despite Venezuela’s political complications, it was interesting to see that whatever one’s leanings, the same pragmatism seems to permeate the private sector of what is still a thriving petro-dollar economy.

I’ll admit it:  I was a little concerned about the reception we’d get. It turned out to be quite the welcome mat, and not only from those who are unhappy with the current climate…but also from those who support Venezuela’s new agenda as defined by its current leadership.  We were met with intelligent questions by a sharp group of prospective U.S. investors from both sides of the political fence who view the U.S. EB-5 Regional Center program for what it is: an intelligent investment-based immigration option which works by creating jobs in the now-floundering greatest economy on earth.

An editorial posted by the Wall Street Journal yesterday was talking about why job tax credits are a bad idea but might as well been discussing the EB-5 program:

“Alarmed by the rising jobless rate, Democrats are scrambling to "do something" to create jobs. You may have thought that was supposed to be the point of February's $780 billion stimulus plan, and indeed it was…. The current [jobless] rate is 9.8% and is expected to rise or stay high well into the election year of 2010. Rarely in politics do we get such a clear and rapid illustration of a policy failure…

This explains why political panic is beginning to set in, and various panicky ideas to create more jobs are suddenly in play...

Alas, their new ideas are little more than political gimmicks that aren't likely to result in many new jobs…”

Gimmicks indeed.  Among the ironies:

-the EB-5 program was just extended for three years last week with bipartisan support, and that legislation creates American jobs which are neither funded by existing U.S. enterprises NOR simply more minimum wage jobs (but, rather, a representative cross section of across-the-board openings, both skilled and less skilled);

-the Democrats, historically unfocused on business/investment immigration due to their relationship with labor, now find themselves in the White House and with a Congressional majority…and seemingly still unable to grasp the staggering job-creation potential via the now-assured continuity of the EB-5 investment visa program.

-the combination of insanely high filing and concocted “related” fees charged to employers of H-1B visa professionals has triggered a dramatic drop in the use of the category, with U.S. employers instead outsourcing these tech jobs overseas…not protecting a single America job but instead accelerating the decline of existing U.S. jobs via the resulting decimation of collateral support positions reliant upon  healthy H-1B visa utilization.

It is all so dumb.  Last quote from that same article in the WSJ:

The lack of U.S. job creation is a big problem, but the quickest way Washington could help would be to stop imposing more financial burdens on hiring.

Did anyone seriously believe that by making H-1B employer fees obscenely high U.S. jobs would be created?  Did Congress honestly imagine that U.S. technology companies would be able to continue to do business in the U.S. without the core numbers of foreign tech professionals...and not outsource??  Finally: was there a single person in Washington who believed that the H-1B process -- already a nightmare of bureacracy even before the imposition of todays outlandish filing fees -- was something any U.S. employer would willingly step into but for a bona fide need for skilled foreign workers?

Thinking about all this over the weekend in Caracas, it is incomprehensable that the world’s largest economy can fail to see the obvious while our prospective investor clients in Venezuela - even those who aren't great fans of our politics -- see the naked truth:  Current unemployment figures in the U.S.,  bargain real estate prices, dramatic increases in infrastructural spending by USG and a green card for the investor combine to make one of those  exceedingly rare “win-win” situations.

It’s about the jobs, Stupid.  

Email me if you want to know more about what we at Bernstein Osberg-Braun & de Moraes are doing to make the EB-5 opportunity a reality for qualified foreign investors.

Wednesday, October 7, 2009

EB-5 Regional Center Forum Debuts

Yesterday, Bernstein Osberg-Braun and De Moraes' first EB-5 Immigrant Investment Forum went off without a hitch in our Miami headquarters.  In addition to some pretty stellar performances by Karen Caco (of counsel to the firm and one of the country's most experienced EB-5 attorneys), Roy Norton (of the Florida Overseas Investment Center ) and Kraig Schwigen (of the CMB Regional Centers), the event was notable for what did not occur:

-no Powerpoint or other computer glitches;

-no questions we couldn't answer;

-we did not run out of food (in fact, the kitchen remains adorned with enough Panini stuff for a New Testament "multitude");

-Roger, Melissa, and I all stayed pretty much on point and, most astonishingly...

-I made it through lunch without getting anything on me.

One should never fail to appreciate the little miracles.

Our three hour presentation - which I had feared might be a big longish -- proved to be quite adequate, flowing nicely from topic to topic and ending with a good Q & A series.  We would like to send our thanks to our guests and participants for giving us their morning, their feedback, and sending us off to Venezuela with our road show well defined.

Next up: Update from Caracas


Monday, October 5, 2009

"Give a Damn" Lawyering

If you count my time as a visa officer in the State Department, I have been immersed in immigration law for 22 and a half years now.  I was thinking about the lawyers I've met over that time, and they range between the Jedi Masters of immigration law to public menaces who should be disbarred retroactively.

Among the skilled immigration attorneys, I've noted a subtle distinction in the underlying qualities which in effect define them, to me, as "good attorneys".  They boil down to two camps:

1- Those motivated by a sense of justice and

2- Those motivated by fear of malpractice/getting in trouble

I should note immediately that despite the obvious innuendo in the distinction I am drawing, legal competence does not appear to be limited to either of these camps of  "skilled immigration attorneys".  Nor am I saying that those I view as "fear-based" give less of a "damn"; some of the very best attorneys I've met operate out of what I would call "fear-based" excellence...a desire for justice underwritten by a very internalized CYA perspective.  Conversely, some lesser skilled but still competent immigration attorneys are all the better for their clients because of their innate appetite for demanding fair results.  Both categories of skilled immigration attorneys are zealous advocates and get the job done, but the former, I submit, accomplish something greater. Robert Kennedy put it this way at a speech at Day of Affirmation at the University of Capetown:

 "Let no one be discouraged by the belief that there is nothing one man or one woman can do against the enormous array of the world's ills -- against misery and ignorance, injustice and violence... Few will have the greatness to bend history itself; but each of us can work to change a small portion of events, and in the total of all those acts will be written the history of this generation...It is from the numberless diverse acts of courage and belief that human history is shaped. Each time a man (or a woman) stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he (or she) sends a tiny ripple of hope, and crossing each other from a million different centers of energy and daring, those ripples build a current which can sweep down the mightiest walls of oppression and resistance." [Emphasis added.]

Ultimately, achieving the desired results for the client is the immediate objective, but it sure is cool to think that one's actions might actually cause that ripple effect which could lead to a tsunami of justice.  I suppose that the Yodas of our profession, people like Ira Kurzban, have done precisely this through their Supreme Court victories...they've swept "down the mightiest walls of oppression and resistance."

Besides this element of the greater good, there is the simple fact that fear-based decision making is rooted in anxiety and negative karma, no matter how brilliant the lawyering.  Getting indignant, spitfire, smoking-out-the-ears mad like Regina does now and then certainly seems more fun...and a bigger splash/ripple in the big Immigration Pond of Life.

I must say that it is nice to once again be in the company of kindred spirits. 

Tell a Friend

Saturday, October 3, 2009

My Visit to the Mauthausen Concentration Camp- 10 Years Later


I have tried and tried hard to find a hard copy of this article since I wanted to make sure that Loyola University's Blueprint for Social Justice got credit for the reprint, but all I can find is this low resolution scan of the article.  Accordingly, the text of the original article is below.

Since joining Bernstein Osberg-Braun & De Moraes just three weeks ago, life has again been full of serious intellectual challenge.  Roger and crew are pushing me harder than I've pushed myself in many years, and it is odd at 48 to both feel the resulting exhaustion and the exhilaration. Put simply, I am having a ball.  But one of the most enjoyable sidebars on the whole experience has got to be that of spending my days with a group of very intelligent, very passionate "immigration folks" who, like me, have lived and breathed this fascinating topic of human migration, tolerance and intolerance, for all or most of their adult lives...the collateral discussions are wonderful.

Without a doubt, the one individual who gets as fired up and indignant as yours truly is Mike Braun, the firm's investigator, a seasoned ex-Fed who quite possibly reads more than I do.  This week's running discussion between Mike and me involved his relaying of an abundance of historical anti-Semetic policies of which I knew nothing...the conversation resulting from the most recent  nuclear news from our delightful Holocaust-denying friends in Iran.  Mike's knowledge of history is basically encyclopedic and every day, it seems, some historical "given" of his is news to me.  These discussions, led to my mentioning to him an article I'd written years ago, and how this whole "Nuclear Iran" deal has me squirming inside.

A decade ago, when Alex and Danny were 10 and 7, we took a day off of snowboarding in the Alps to visit Mauthausen in Austria, the most horrific Nazi concentration camp which never became a household name, like Auschwitz.  A number of friends were mortified that Leah and I would take two young boys to a place like this but we were convinced in the legitimacy of the belief that the only way to never permit these things to happen again is to never forget the past.  And so we went.

My sons are both at UF now, intelligent young men with compassionate hearts; looking back on this visit and rereading what I wrote a decade ago, perhaps my friends were right: perhaps subjecting those two little boys to witnessing hell itself was premature, perhaps even selfish of me.  One thing is for sure...none of us will ever, ever forget.

On the Price of Intolerance: An Editorial from Jose E. Latour


[Originally published in "Port of Entry", Jose's prior daily online column, and reprinted by Loyala University]

 MAUTHAUSEN,AUSTRIA-  The snow is blasting on the windshield
as Leah pulls the rented VW Passat out of Mauthausen, onto the road which leads
us back to the beautiful village of Enns, with its funky
medieval storefronts. It is 1 p.m. but the car's very cool blue dashlights are
aglow, casting a strange hue on our faces. The car is very quiet as we head
eastward, the not-so-blue Danube, broad and
mighty, alongside the road. The sky is gray and so is the mood in the car. The
boys sit in the back, blankly staring out the window. We are supposed to be
heading west, toward Linz, the provincial
capital of Upper Austria, for a final day of
sightseeing. But the plan has changed. We pull into the first and only
McDonald's for some pommes frites (yes, I know, but that's what they call them
here, too...) and reflection.

 That Friday was our last day in Austria,
on our first trip to that beautiful part of Europe.
My little business trip had turned into a week-long family vacation with three
days of skiing the Austrian Alps and two action packed days of sightseeing. The
snow had been sublime, the bed and breakfast arranged for me by a client,
outstanding. As usual, I was the oldest snowboarder on the mountain, but the
kids were far more polite to me than the helicoptering, megapierced lunatics
airborne in the great American West. In fact, we were the only Americans in a
part of the Alps so remote that all the other
tourists were German and Austrian...met one other American in an entire week in
the country.

 We had three days on the mountain, and the snow was so heavy
that we didn't see the moon, the stars, or the sun for the entire week. My Caribbean soul found this a bit disconcerting, what with
my nightly habit of greeting Orion, the Pleiades, and the Moon, but, hey, the
snow was soft and forgiving and my spectacular wipe-outs went unpunished.
Besides, it was only a week. For the other two days, we had to choose
carefully: picking two, day-drive destinations in Austria is like picking an
ice cream flavor at Baskin-Robbins or a cigar at Mike's in Miami...too much
good stuff to choose from. We settled on Salzburg,
the birthplace of Mozart (among many other things) and Mauthausen, a preserved
concentration camp which, in World War II, was amongst the most notorious Nazi
camps in all of Europe.  Leah and I told Alex and Danny that it was important for us to see
first-hand what the Holocaust was all about, and that another day of skiing was
not more important.

Our trusty Frommer's Austria Guidebook described the trip to
Mauthausen as "a sobering outing." The trip from Vorderstoder, high
in the Alps, to Enns and across the Danube to
the camp took about an hour and a half. (Incidentally, until reading the
history of the camp, I had no idea just how much Austria had cooperated with the
Third Reich when the Germans came in. However, as Leah noted, what could a
bunch of rural farmers do to resist at that stage? To Austria's
credit, they have faithfully preserved the camp and memories, acknowledging the
responsibility that comes with having this place on Austrian soil.)

 We prepared the boys by telling them that the things we had
all learned in school about the murderous Nazi's, their delusional desire to
"cleanse the race," and their atrocities would now come alive in
images we would not soon forget. We told them about intolerance, about the
arrogance of presuming racial superiority, and about the human tendency to
create "us and them" dichotomies. We talked about how Judeo-Christian
teachings emphasize the Golden Rule, treating others the way we wish to be
treated, and about how the American forefathers perceived accurately that
"all men are created equal." We discussed how things in Europe had gotten
out of control, how one madman's political agenda had turned into genocide, and
wondered how people had agreed to the underlying "logic." We talked
about the politics of hatred and the strength of such frightening bonds.

 We were one of about four cars in the parking lot. We made
our way through the snow and ice covered entrance, through the great gate and
stone footings. The vast camp was a virtual killing field for the Nazis: in
addition to murdering thousands of Austria's Jews, thousands of
"undesirables" including homosexuals, gypsies, Spaniards, Russian war
prisoners- you name it- were put to death within these walls. The total number
of Nazi murders within these few acres: about 200,000.

 We toured the grounds and museum and an attendant led the
four of us to a screening room where we sat and saw the English-language
version of the story of Mauthausen. I then led Leah and the boys, with our
little English handbook, through the camp and we saw it all. All of us cried at
one point or another. We saw:

 - the photos of
the naked living skeletons denied, women, and children...

 -the gas chambers
where they were herded by the dozen, and the fingernail scratches on the stone
ceiling, and photos of those killed there left by family members.

 -the custom built
gallows for quick hangings.

"medical" office where prisoners were told to line up facing the wall
to have their height measured, and a bullet was fired into their forehead.

-the mass graves

-the photos of
men dangling, dead, on the concertina and barb wire

 -the brothel for
the camp's commanders

 -the human
experimentation records where atrocities were committed in the name of

 We heard in the video various recollections of liberation
day, when the U.S.
forces came in through the front gate. Several freed prisoners recalled the day
with the precision and cold description that can only be delivered by someone
who has faced the demons every night since, and who has somehow found a place
to file it all away and stay sane. Not so with one of the American servicemen
recalling that day. He starts off calm and then breaks down and cannot stop,
describing what the people looked like, how they continued to bury hundreds per
day after the liberation, because the dying were too weak to eat. Because, as
he put it, "we were too late".

 We saw it all, but what we saw most were numbers. Numbers of
prisoners from each country. Number of homosexuals. Number of deaths this month
and that month. Numbers of days chalked on a cell wall. Numbers of bodies
buried or cremated at the virtually 24 hour a day crematorium, where workers
were ultimately killed by the Nazi's in an effort to keep them from ever
telling anyone what they had seen. Death and snow everywhere you looked. Two
hundred thousand lives.

 I know what you are thinking right about now: that's SOME
vacation for your kids, Jose. But my kids are learning about the world, and
their vision is clear. The visit was devastating to the four of us but it was
necessary. We're back in America
now, where the U.S. Congress is proposing a moratorium on immigration. Although
the chance of passing is very remote, it certainly is an indicator of the
thinking and mood of the American public. And it all uncomfortably ties
together in my head...the proposed immigration moratorium, Mauthausen, the
dragging death of the black man in Texas, the
shooting of the unarmed African man in New
York...what does it all mean?

 If you ask the sponsors of the Moratorium Act, I can tell
you the catch phrases: "control our borders," "protect American
workers," "control population growth"...all admirable goals and
very real in this day and age. I'd be a liar if I didn't tell you it bugs me to
enter a store in Miami and realize that no one speaks English...I'm as guilty
of that as the rest. But, as a Hispanic male living in America, I
wonder if there is more to it. I wonder if all of this is, perhaps due to the
fact that America is
becoming less "white," like Hitler's Germany was back then...

 If a single thing is memorable from Mauthausen, it's the
documentation of the Nazi's last minute, hysterical efforts to conceal their
atrocities. As the Allied forces were approaching, the gas chamber was
disassembled, documents were forged, bodies were buried en masse. To me, it
says a lot. Despite all of Hitler's propaganda, despite the Master Race crap,
these bastards were ashamed. Instead of running for their lives, they had to
try and cover their bloody tracks, as absurd as it must have seemed at that
time. They didn't want the world to know what they had done.

 Today, once again, we hear about the neo-Nazi movement
worldwide, and we see the tightening of immigration laws in Europe and the U.S., and we
intellectually discuss the respective economic issues and impact, trying to
come up with "rational" policies. We think there are too many
Nicaraguans in the U.S.
but our housekeeper is the exception. We berate the Mexican migrants who picked
the vegetables we buy at the produce section of Safeway. And, as a nation, we
cringe at reading the statistics that show that the black, Asian, and Hispanic
populations are growing far more rapidly than the "white" population.
Why is this an issue if "all men were created equal?" Why should any
of us care -- Hispanic, black, white, or otherwise?

 As we sat there that Friday, at the Austrian McDonald's,
eating our pommes frites, drinking Cokes, discussing what we had seen, our
family forever changed.. My cocky 10 year old Alex expressed his appreciation
for America
and the freedom we have. My sensitive 7 year old Danny was hugging me, telling
me he loves me...I saw in his eyes he understood what he had just witnessed. My
wife, tough as nails and our family's glue, said that she would never take our
lives for granted again. Me, I still see the looks in the eyes of the people in
the pictures and I wish I could turn back time. Two hundred thousand lives,
dreams, hopes and prayers...

 Seems to me that as we craft the future of our nation, it
behooves us to take a "sobering" look at the past and we must
remember: never again.