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...


Oy.


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?


THE ANSWER:


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 usvisanews.com 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 time...life 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...


JOSE'S UNSCIENTIFIC MAXIMS FOR SMALL COMPANY H-1B VISAS




  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.


http://marketing.fragomen.com/files/Uploads/Documents/Site%20Visits%20by%20USCIS%20Fraud%20Detection%20and%20National%20Security%20Unit-%20%20Representative%20Questions%20Asked%20by%20FDNS%20Officers.doc


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