Saturday, June 29, 2013

IRS Requires Electronic FBAR Filings Beginning July 1, 2013



The U.S. Internal Revenue Service has announced that its form for reporting foreign bank and financial accounts will only be accepted for electronic filing beginning Monday.  The so-called "FBAR" - which stands for "Report of Foreign Bank and Financial Accounts" -- requires anyone who is subject to U.S. taxes to report any interests in financial accounts, trusts, etc. overseas.  Here's a link to the IRS page on FBAR:


IRS' FBAR FAQs

I know I sound like a broken record, but I continue to be astonished at the number of inbound EB-5 investors I meet, especially those from the Pacific Rim, who have given absolutely no thought whatsoever to pre-immigration tax planning.  Once you land at the airport and get stamped as a U.S. conditional resident, you ARE subject to worldwide taxation!  Neither the smooth-talking U.S. EB-5 purveyors (okay, I admit it, I may fall into this category...(-;) nor the foreign migration agents want to raise the subject of U.S. tax liability with prospective EB-5 investors in China, Taiwan, and Koreas...because it's a deal-killer when the client has significant foreign assets.  In the past two months I've had two new EB-5 investors, recently arrived, tell me that they just aren't going to report their overseas assets.  THAT brilliant strategy, used so resolutely by South American immigrants over the past two decades, is not ideal given that the U.S. has just announce an information sharing initiative in conjunction with 50 foreign countries!

If your foreign assets consist of a few properties, I can probably help you.  However, if your foreign assets involve substantial business interests, holdings, intellectual property, etc., then you need a serious tax attorney to help you get organized in your pre-immigration tax planning...BEFORE you arrive on U.S. shores.  If your case is the latter, as always I direct you to my trusted colleague Steve Cantor, who is the best in the business...tell him Jose sent you!

Sunday, June 16, 2013

The End of the Innocence: INTERPOL Complicity in Political Persecution

In my most recent two decades of law practice, I have dealt primarily with high net worth individuals who are living in unstable places in the Middle East, Far East, Latin America, and former Soviet states.  And as I have so often written in Immigration Insider, while the opportunity to secure U.S. residency through an EB-5 investor visa is a great option for many, there are a certain percentage of very high net worth clients for whom the U.S., with its regimen of global taxation on all income generated worldwide, for whom a green card makes very little sense.  These are the folks form whom we explore options like a St. Kitt's passport investment and other alternative jurisdictions.

After not hearing the word "INTERPOL" (which stands for The International Criminal Police Organization) for a VERY long time (probably since my days as a U.S. consular officer in Africa), it is now part of my daily lexicon, initially the result of the late Hugo Chavez' bombardment of international arrest warrants against any and all affluent and/or powerful Venezuelans bold enough to defy his dictatorial agenda.  A few trumped up allegations ramrodded through a Chavez-owned court and presto:  an obliging Interpol, without so much as an iota of due diligence, issues a so-called "Red Notice", a de facto international arrest warrant which triggers visa denials, detentions, and the end of travel freedom...irrespective of whether the flagged person is a bona fide criminal or a local politician running against a Chavista mayor in a pivotal election.

The problem is that INTERPOL is, well, very political, very profitable, and made up of many member countries whose respect for the rule of law is, ahem, somewhat lacking.  Back when it was established as the International Criminal Police Commission (ICPC) in 1923, it was a pretty good idea.  Bad guys on the lam could be caught via the telegraphic issuance of international communiques.  But fast forward almost a century and its 190 countries provide it with a budget of around €60 million  (that's Euros) through annual contributions.  These member states include some real beacons of liberty:

  • Azerbaijan
  • Equatorial Guinea (where I was a consular officer and lived to tell)
  • Cuba
  • Kyrgistan
  • Russia
  • Nigeria
  • Syria and of course, my personal favorite,
  • Venezuela
That's just a slice of INTERPOL's finest and believe me, there are dozens of the most corrupt, dictator-driven, scandalous countries in the INTERPOL roster.  Which explains why in the past year I've had a half dozen clients surprised to hear that they were, suddenly and inexplicably, "wanted by INTERPOL". 

As I continue my journey down the rabbit hole I fell into last week on US soil, I am swiftly coming to the conclusion that what I've called "ACLU Paranoia" for the past 3 decades may simply be what happens when you take the Red Pill and, like Neo in the Matrix, snap out of the fiction into a world where freedom is hardly assured, and where the government is not necessarily "here to help"

Check this out:

Great Article on How Some Governments Use Interpol to Pursue Political Agendas

Wednesday, June 12, 2013

An Apology to CBP For Yesterday's Blog Title

I've received two phone calls this morning from U.S. Customs and Border Protection.  The first was from an old CBP friend who was incredulous over the events of this past weekend, which I relayed in yesterday's Immigration Insider as "My Weekend on the U.S. Border: CBP or KGB?"  The second call, in contrast, was from a very angry, semi-literate self described "CBP professional" who, between expletives, stated he had been there during my prospective investor's illegal detention and I had totally "miscontruded" (had him repeat that to make sure I heard correctly) the facts in my blog.  After Saturday, the tone and language was hardly a surprise but receiving that second call on my personal cell phone was extremely uncool.  How did he get my number?  Why did they copy my U.S. passport?  What are they doing with my personal information? 

One thing both my friend and angry caller agreed on was that my comparing CBP to the KGB was over the top.  In retrospect and with a cooler head, I agree, and I would like to apologize to the countless CBP professionals throughout the country as my words were out of line.  I had a very shocking, very traumatic, very illegal set of events unfold this weekend at the hands of a few CBP officials (along with other unidentified civilian USG officials) and I realize that the outrageous actions of a few do not represent the character and integrity of the corps of law enforcement professionals protecting our borders and Ports of Entry.   Rereading my blog, it was written by a very outraged former U.S. visa officer.   But my comparison was the equivalent of trash talking the Marine Corps because of the violent actions of a few bad Marines...and that is something I would never, ever do.  I am sincerely sorry for my words and am editing the title of the blog post to remove that very poor choice of words, and I especially apologize to my handful of friends in the CBP, all of whom are exemplary professionals.

Now...as for the individuals who DID in fact on Saturday conspire with Mexican authorities in handing over a prospective EB-5 investor possessing a valid B visa, a 100% clear criminal record, and who had not been charged with anything anywhere...no apologies to you.  You -- meaning you the supervisors calling the shots and the half dozen agents saying they were "following orders, sorry" -- live and work on the border and are acutely aware of federal procedural requirements when a person asks for asylum.  Each of you -- I don't care whether you are a supervisor or a newbie -- had a personal responsibility to step up and say "we CANNOT do this as it is AGAINST THE LAW."   You had 4-5 hours to stop the madness but instead let it continue and in so doing violated express statutory provisions relating to the prohibition of Expedited Removal in cases where an individual requests political asylum.   Those responsible held accountable for their actions when the Department of Justice ethics investigators come and visit.   And given the number of us --other prospective EB-5 investors as well as attorneys from both countries -- who witnessed Saturday's obscene desecration of the U.S. Constitution... it will be interesting to hear what you have to say.

Tuesday, June 11, 2013

My Weekend on the US Border: CBP Gone Awry

This past weekend, as I have so many dozen times before, I entered the US with a group of  Mexican nationals with valid U.S. B1/B2 visas for the purpose of exploring various EB-5 Regional Centers in Southern Texas.  As always, I explained that the prospective investors all needed I-94s as we would be going further than 25 miles from the border.   As the officers processed the I-94s, one of the prospects, a former Mexican state official  (although he is not my client, I am omitting his name out of respect for his now-traumatized family), was taken behind the waiting room; an hour later we were advised that his visa was being cancelled and he would be allowed to return to Mexico.   Fair enough.  But over the course of next four hours, he was instead arrested, denied access to counsel after asking for political asylum, shackled, and unlawfully transported across the bridge into the waiting arms of the Mexican authorities...which CBP had directly notified.  

For the past six months, since leaving public office, the individual in question has been one of numerous subjects of a politically-driven media campaign alleging misappropriation of public funds.  Aware of this issue in advance, I had specifically confirmed with his Mexican counsel before crossing into the US that there were no outstanding arrest warrants or convictions which could prevent his US entry...absence of any warrants or charges in Mexico was verified on the evening before into the U.S.  (Under Mexico, btw, as in the US, the law presumes a person innocent until proven guilty in a court of law via a fair trial.)  After our EB-5 visits in Southern Texas, the prospective EB-5 investor intended to continue his travel in the US to visit his child who is attending school in valid F-1 status, spending Father's Day there.   I had been previously told that his  considering an EB-5 came at the behest of his family, increasingly concerned for his welfare and safety given the situation in Mexico.  With the endemic violence, kidnappings, and corrupt political persecution, which is sending thousands of Mexicans northward (and EB-5 lawyers like me southward), immigrating to the U.S. is a very attractive option.
 
After several heated exchanges where at one point a CBP Supervisor to my face flatly denied the man had even asked for political asylum(!), MY U.S. passport was demanded, taken and photocopied; our Mexican taxi driver was ordered out of the van, the vehicle was driven off without explanation by a CBP officer, and when it returned awhile later, our briefcases and computers had been rifled through and luggage was torn apart in a search that yielded nothing but EB-5 Regional Center marketing pamphlets.  As I desperately tried on my cell phone outside of the CBP office (on US soil) to find a local deportation attorney (since I know zero about deportation law) or reach the Port Director's emergency contact number, I was stopped from using my phone three times by three different CBP officers brandishing large automatic weapons.  I asked them:
"Are you REALLY preventing a U.S. attorney from using a phone on U.S. soil outside of CBP offices??"
The answer, though unspoken, was a definitive "yes", and after the third ICE actually cocked his rifle, I put the phone away.  I can honestly say that in 26 years of working as an immigration attorney in both the U.S. government and in private practice, I have never witnessed a more flagrant and shameless abuse of the US Constitution.  In fact, the only other time I've been threatened at gunpoint was in Africa in Equatorial Guinea...by their customs officers, ironically enough.

Our research over the past two days suggests that systematic disregard of the U.S. Constitution and immigration laws is endemic and SOP at certain US/Mexico Ports of Entry.  I will be filing a formal complaint with the U.S. Department of Justice to insure that those responsible for what happened this weekend are held accountable.  I am asking all AILA members who know me, or who read II, or who care about this barbaric situation to please join me in pursuing an aggressive effort by AILA National to insure this abuse is handled at the highest level possible in Washington.  I know one particular person in Washington who, like me, lists Abraham Lincoln at the very top of his hero list, and if the President had witnessed these events the way he was able to witness the take down of Bin Laden, heads would be rolling at the U.S. side of the border.

Last week, btw, this same absolute disregard of U.S. federal law by CBP resulted in the death of a 22 year old woman illegally forced back into Mexico by U.S. border agents.  The victim, who had been subjected to abuse and had a restraining order against her boyfriend, had multiple options in terms of relief from the immigration courts.  Like my client, she was not given access to counsel despite pleading for asylum given her fears and forced out of the US within hours. The immigrant right groups pursuing the matter say CBP actions cost the victim her life, stating that  "the improper shortcut proved fatal for the mother of three."  In AMERICA.  Hard to believe, right?  Not after my weekend.  See the full tragic story here:

Illegal CBP Deportation Gets 22 Year Old Woman Killed

If, on the one hand, our prospective EB-5 investor is unharmed and given a fair trial in Mexico (and irrespective of whether he is found innocent or guilty of financial irregularities), then CBP is accountable for policy violations, civil rights violations, and of violating the fundamental due process rights as guaranteed by the U.S. Constitution and those responsible should be held accountable.  In the recent case involving a border CBP officer who sexually assaulted a number of women, this is what the DOJ had to say:
“We will not tolerate law enforcement officers engaging in this behavior with institutionalized persons,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division. “The Justice Department will continue to hold accountable individuals who abuse their position and authority in this manner.”
Let's hope so.  Because if, on the other hand, this man, who has not been charged with any crime whatsoever, is physically harmed in Mexico, his blood will be on the hands of those U.S. officials who willfully said "the hell with the Constitution and Due Process" during this most ugly week on the border.



Wednesday, June 5, 2013

Michael Harris' Great Article on Obtaining EB-5 Regional Center Status

Michael Harris, my friend, longtime collaborator, and former Padawan has written a comprehensive article on the pros and cons of establishing or acquiring an EB-5 Regional Center...MUST reading for all you developers out there being seduced by the sweet siren song of U.S. immigration attorneys promising long lines of eager Chinese investors, checkbooks in hand...(-;

Michael Harris' "The EB-5 Highway"