Immigration Insider

All Abuzz About Regional Centers

The momentum is palpable: Roger and I are spending the better part of our days dealing with three sets of inquiries:

1- U.S. Developers and Project Managers considering an EB-5 structure to finance their projects with foreign capital;

2- Attorneys and Investment Advisors with foreign clients who are intrigued about the new EB-5 Regional Center opportunities and, naturally;

3- Foreign investors who are reading the blogs and want to know more.

Next week our EB-5 team travels to Venezuela to begin our international series of presentations on the EB-5 opportunities available in the U.S. to qualified foreign investors.

These days, a $500,000 investment to secure permanent residency in the U.S. for yourself and your loved ones seems to make a whole lot more sense than spending that same amount on an oceanfront condo you might not use as often as you'd like...

Cause and Effect: Illegal Cuban Migration is Down

The Miami Herald reported this morning that the number of Cubans attempting to illegally enter the U.S. has dropped dramatically in the past year.  Based upon what the U.S. Coast Guard has seen, the reason is that "fewer undocumented Cubans are leaving the island for the United States, not only through the traditional route across the Florida Straits but also through the newer route across the Yucatán Channel to the Mexican border."   The change in number is indeed signficant:  the Herald reported that in the 12-month period between Oct. 1, 2007 and Sept. 30, 2008 almost 2,200 Cubans were interdicted at sea and almost 3,000 landed on beaches. With less than a week left for the same period in 2008-2009, less than 1,000 Cubans have been stopped at sea and less than 600 have made it to land. Furthermore, the highest-volume route to the U.S. for Cuban migrants - via the Mexican border -- has seen 5621 this year...compared to over 10,000 last year. The Herald concludes: "No one knows precisely why fewer Cuban migrants are arriving in the United States." On my drive to work this morning, the pundits and experts were sharing their theories: the U.S. recession (as if Cubans in Cuba had access to current events, much less the Wall Street Journal) improved Coast Guard patrol methods (suddenly revolutioned after a half century) Mexico's "toughened migrant policies" (a silly theory which is predicated upon Mexico's new official policy of repatriating Cubans to Cuba but which wholly fails to consider the fact that corruption among Mexican officials remains as rampant as ever) and... "less restrictive U.S. Cuba policies". Hmm.  Now THERE'S a possibility which actually sounds feasible to me.  Perhaps the Obama administration's elimination of travel and money remittance restrictions could be playing a role.  You see, people like me with family in Cuba can now visit whenever we want and send them however much money we can afford to send (with the Cuban government, naturally, taking a nice chunk of the pie.)  Since economic difficuly is the reason most frequently cited by illegal migrants as the reason for departing Cuba, perhaps this sudden inflow of money is making the situation on the island, well, more bearable? Who knows?  I suspect the truth lies somewhere between this theory of economic infusion and the theory espoused by the distinguished director of the University of Miami's Institute for Cuban and Cuban American Studies, Jaime Suchlicki: "Repression may be tighter in Cuba...there are many things we don't know.''

EB-5 Investor Visas: Congressional Intent Manifested 20 Years Later

The following is an excerpt from the testimony of distinguished immigration attorney Stephen Yale-Loehr before the U.S. Senate's Committee on the Judiciary, July 22, 2009:

"Congress created the fifth employment-based preference (EB-5) immigrant visa category in 1990 for immigrants seeking to enter to engage in a commercial enterprise that will benefit the U.S. economy and create at least 10 full-time jobs. The basic amount required to invest is $1 million, although that amount is reduced to $500,000 if the investment is made in a "targeted employment area," meaning a high unemployment or rural part of the United States. Of the approximately 10,000 numbers available for this preference each year, 3,000 are reserved for entrepreneurs who invest in targeted employment areas. A separate annual allocation of 3,000 visas exists for entrepreneurs who immigrate through a regional center pilot program. According to the U.S. Citizenship and Immigration Services (USCIS), over 90% of all EB-5 investors invest through regional centers, so my testimony will focus on that aspect of the EB-5 program.

The statutory requirements of the EB-5 green card category are onerous. Traditionally, very few people immigrate in this category. The numbers are increasing, however. In fiscal year (FY) 2005, only 346 investors, including their spouses and children, immigrated in this category. In FY 2006 the number increased to 749 and in FY 2007 increased again to 806. The EB-5 category is one of the only employment-based green card categories that are not backlogged. "

So here we are, almost two decades after Congress passed legislation which was designed to create U.S. jobs and bring foreign investment capital into the U.S....only to have its utility essencially eviscerated by a barrage of regulations, legal misinterpretations, and dishonest developers, all of which would eventually bog down thousands of investors in a legal hornets nest which would take years to untangle.

Fast forward to this last half of 2009 and things are FINALLY on track.  EB-5 Regional Centers are not only getting approved, but some are paying returns.  Investor visas are not only getting filed, but residency is being approved. All of the sudden, when America MOST needs jobs and capital...the EB-5 is coming through for both the investors...AND America.

Here at Bernstein Osberg-Braun and de Moraes, we see the EB-5 Regional Centers as an essential part of America's economic recovery.  For the cost of opening a restaurant, investors can now get permanent residency for them and their families, a return on their investment, and peace of mind...without having to launch a new business in the U.S.

If you are looking at a future in the U.S. and $500,000 to invest, email me so I can explain what we are doing to make the American Dream come true.

 

Rethinking "Ineffective Assistance" of Immigration Counsel

Yesterday I wrote about the astoundingly high percentage of immigration clients who walk through my door after having been ripped off, defrauded, or simply incompetently represented by an attorney, notario, or immigration consultant.  I told you that based upon what I've seen so far in 2009, 80% - that's four out of five - of my new clients have been victimized in such a fashion.  Today I'm going to discuss how this reality is being handled by our federal government, and why things need to be reexamined at the level of adjudications.

First some background: in my years as visa officer, I had the opportunity to serve as Fraud Officer for the Stateside Criteria program in Ciudad Juarez, Mexico.  The program, long since terminated, permitted aliens who were marrying US citizens but were ineligible to adjust status to travel to border posts in Mexico and Canada for the adjudication.  The rationale was that it was too expensive for a Filipino, for example, to fly home, and this would be cheaper.  Well, getting to Juarez has never been cheap and there was a far more compelling ulterior motive: since the Mexicans didn't want third country nationals stuck in Mexico after a visa denial at the U.S. Consulate in Ciudad Juarez, a policy was established at the border to permit Stateside applicants who had been denied their immigrant visa to be  paroled back into the U.S.  So no matter how fraudulent the marriage, they got back in.

I raise the example of Stateside Criteria because the statistics were similar: when I was Fraud Officer in Mexico, some 80% - four out of five - marriage cases via Stateside Criteria were fraudulent.  Some had been shanghaid by a notario; the vast majority were committing deliberate fraud.  So that begs the question: how many of these 80% of clients who've been ripped off were really ripped off...and how many were like the Stateside folks, simply trying to hustle a way into America which they knew to be fraudulent?

Look, I've seen WAY too many intelligent Latin Americans from considerably stable countries who applied for political asylum when they HAD to know they didn't stand a chance...but wanted an EAD - employment authorization.  After you've heard a few hundred educated professionals sing their version of Shaggy's "It Wasn't Me", it is difficult to buy into the whole "victim" deal.  They sound more like co-conspirators, frankly. Regardless, it is my job to disentangle the tangled web and that's what I do.  But does that mean that 80% of the clients I'm seeing these days are partially responsible for their bad experiences with prior counsel?  The answer is "no".  The overwhelming majority have simply been given poor legal advice and, more often than not, are in trouble because their attorney simply didn't know enough about immigration law, period.  For whatever reason, the Shaggy's have faded away and what I am seeing instead are solid NIV applicants with great cases in deep trouble because of bad lawyering.

As a former adjudicating visa officer, I had to exercise a blend of compassion and pragmatism to insure that the decisions I made were just...and it was never easy.  I believe that this is precisely what U.S.immigration adjudicators still must do today.  In the "old days" of INS, I filed dozens of Motions to Reconsider predicated on ineffective assistance of counsel, and when the officer in charge understood that the applicant was truly a victim of bad lawyering , we would invariably be given an opportunity to correct the problem...we would be allowed to lead the client to a just result given the circumstances.

Apparently, however, the barrage of immigration "dabblers" - attorneys who claim to be immigration attorneys but are essentially dabbling in what is one of the most intricate substantive areas of law -- has used up this federal goodwill, and USCIS has now more or less taken the position that even if it was the attorney's fault, too bad.  Recently, the USCIS refused to permit rectification of a clear botch job by an attorney, even though it would have been an easy fix.  I was nicely told that they were sorry but reopening the matter was prohibited by policy.  Instead, the client now has to spend months and a small fortune to correct the lawyer's mistake. 

Justice unfolds only when the USCIS treats each applicant as an individual, property sanctions those who participate in fraud, and grant reconsideration to those who have been victimized by incompetent representation.  There is simply no justice in punishing someone for another's sins.

When it Really is the Immigration Lawyer's Fault

Over the course of the past two decades of legal practice, I've observed a trend which, frankly, reflects poorly on my profession as an immigration attorney.  First, as a consular officer in Mexico, I was astounded almost daily at both the regularity of fundamental legal mistakes made by counsel for visa applicants and by their consistently adverserial responses when called on said mistakes.  (As the old saying goes, you can attract a lot more flies with honey than with vinegar, but attorney case inquiries directed at the consulate were, a majority of the time, pretty hostile.)

It was not surprising, then, during the early years of private practice in Miami (1991-1993), to find that a significant portion of my clients were coming to me after they had already hired another immigration attorney, "notario", or other individual...who had failed in his or her mission.  By the time I'd settled into Miami Beach and my practice was very busy, I decided to informally track the number of new clients who had already hired another immigration attorney for the same matter, and things had not worked out.  By 2000, that figure was about 40%...4 out of 10 new clients were coming to our firm after having lost their money with a prior attorney or "notario" who failed to obtain the approval for which they had paid.

Back then, symptoms of these inefficiencies were most visable through the dual demons: unlicensed practice of law and the even more insidious abuse of appellate processes. The former, of course, was and continues to be targeted by the Florida Bar. The latter worked (and still works) like this:

-the attorney takes on a case which is either patently unapprovable or, more often than not, outside the scope of his or her expertise.

-with a cavalier "I can't guarantee ANYTHING" (and we can't) attitude, the case gets filed and promptly denied SO...

-the client is told to fork over thousands more for an appeal which, while almost certainly doomed, will take months or even years to work its way through the system.

Obviously, it is impossible for attorneys to only accept "easy" cases; but an ethical obligation exists to explain to the client the true risks of a particular filing so said client can make an educated decision.  Like the old Sym's ad used to say, "an educated consumer is our best customer"...and best client.

So where are we today on this issue?  Don't even ask.  I've kept track of this since returning to South Florida in the spring of this year and found that 80% -8 out of 10 - inquiries I've gotten have been previously either defrauded or incompetently represented.

Tomorrow I'm going to discuss how this incompetence is currently viewed and handled by ICE and USCIS, and why the federal government needs to take fresh look at the issue of immigration attorney/notario incompetence.

Welcome...to the Machine

Well, today is the fifth day of my joining Bernstein Osberg-Braun & De Moraes and what a ride it's been so far.  It's been six-plus years since Lorenzo bought me out at Latour & Lleras and my first reentry into a "real" office environment (as opposed to working from home)...and smooth as silk.

Roger Bernstein and I knew each other about a decade ago, and the coincidences which led me to contact him and, within hours, agree to work for him, are too many and too powerful to discuss in this blog.  It suffices to say that our stars seem to be very aligned and that joining forces - rather, this lone ranger joining the immigration Jedi's Roger and Linda (Osberg-Braun) have put together - is probably far more karmic than pragmatic...although the whole deal is certainly oozing with pragmatism.

A day in my sunny office on Biscayne (with a great view of Home Depot a nice one of the bay) is not that different than an episode of Star Trek, with Kirk and the crew dealing with assorted aliens, some in trouble, some with agendas, and some who can be, at times, rather unpleasant.  But armed to the teeth with our collective INS/USCIS/DOJ/STATE DEPT. experience, I can truthfully say that of the 20+ complex cases I've been introduced to so far this week, there has not been a single occasion where, between all of us, we could not come up with a solution.  Seriously.

I have to fix the blog home page but in the interim, please note my new contact information:

Jose E. Latour, Esq.

Bernstein Osberg-Braun & de Moraes

11900 Biscayne Blvd., Suite 700

Miami, FL 33181

Tel. (305)895-0300, Ext. 3228

Email: jlatour@visaattorneys.com

www.visaattorneys.com

So drop me a line, say hi, and stop by my new digs if you are so inspired.  It is truly a pleasure to have the internal engine of my intellect once again running at its destined redline RPM.

"YOU LIE!"- The Aftermath

Just a quick note since a few of you asked:  when I wrote yesterday's editorial regarding the epidemic stupidity in Washington and the fact that the various forms of pending legislation ALL prohibit medical benefits or subsidies to undocumented aliens, I didn't even KNOW about Rep. Joe Wilson's moronic and embarrassing outburst!

In reality, I was baaaaad Obama supporter on Wednesday night, totally forgetting about his address to both houses of Congress, instead settling in with a good book and going to bed early.  When I wrote the blog, I had not heard about the "YOU LIE!" episode at all but it simply affirms what I've been saying all along, which is directed to ALL politicians regardless of party:

The sheer volume and complexity of written legislation unfolding in a culture of Twittering, sound bytes, and the Internet's immediacy can only mean one thing: politicians can either keep their mouths shut until they (or, presumably, their staff members) actually READ the legislation being considered or do as Mr. Wilson did and make an ass of himself through his conduct while simultaneously demonstrating to the world that not only is he a rude person, but has not read the legislation being proposed.

I continue to be impressed with the dignity, decorum, intellect and compassion which our new President consistently exhibits in the wake of the idiocy he is confronting in Washington.  Let's hope some of that rubs off on Capitol Hill.

Don't Buy the Lies: Illegal Aliens WILL NOT Get Free Healthcare

I'll tell you one thing: news travels FAST on the Internet, especially when it's nonsense.  Yesterday I received an email from my beloved brother in law, a hopeless conspiracy theorist, regarding the President's so-called foreign birth.  I actually read the whole thing out of curiosity, wondering what on earth NEW could have come out of this long-resolved foolishness.  The answer: nothing.  But the Web is full with regurgitated variations of the disproved allegations and a lot of folks are still rehashing the issue, facts be damned.

Same thing with health care reform.  For the past few months I've had some pretty dynamic discussions with folks regarding the concept of a "national health care plan", which I initially championed but now am, candidly, less sure about.  My belief that as a nation we MUST provide basic health care for those who need is unchanged, as is my belief that the current fraud-riddled public benefits abuse - i.e. Medicare and Medicaid - must be the first casualty of the status quo before true reform can begin.

But the latest assault on truth by the truly unenlightened comes from the predictable Center for Immigration Studies, an innocently-named interest group which, in fact, exists exclusively to trigger anti-immigrant hysteria.  Yesterday, these people claimed that under contemplated health care reform, millions of illegal aliens would receive U.S. subsidized health care paid for by, you guessed it, we the taxpayers.  Never mind the fact that H.R. 3200 expressly bars unauthorized aliens from receiving federal subsidies toward health insurance.  Never mind that existing laws AND the bills being considered in congress all feature proof of citizenship requirements.  I'm sure Ol' Lou will spend his hour tonight on this non-issue. 

Sigh.

The CIS, like other hatemongers disguised as "think tanks", etc., released this information not for the specific purpose of derailing health care reform (although they probably would love to do that as well.)  It is just another feeble lie designed to foster the xenophobia to which they pander.

Advocacy based on fabrications and lies is not advocacy; it is what governments like Cuba and the PRC use to influence the masses.  Shame on the CIS.

Revisiting the EB-5 with Eyes Wide Open

Those of you who've been reading me for awhile -- as in from the "Port of Entry" days back when dinosaurs ruled the Internet -- probably know that I have been rather, er, vocal about my opinion about the EB-5 Immigrant Investor visa, particularly the Pilot Program Regional Center investment vehicles.  The truth is that over the years, my encounters with Regional Center projects were invariably negative, triggered by would-be investors mortified to learn that their long-promised permanent residency had been denied, usually for reasons ranging to lack of capital risk to dubious job-creation evidence.  Each time, the solution was pretty much the same: an L-1/EB-1 structure would save the day.  In fact, as recently as several months ago, I again restated in this blog my ongoing belief that EB-5 Regional Centers only made sense for retirees. 

Well, it appears that my conclusion was as wrong as it was dated.  Enter one Roger Bernstein, old friend and distinguished Miami immigration attorney.  In the past 24 hours, Roger and his team have educated me on the "NEW" EB-5 Regional Centers and what's really going on out there.  And so I am sitting down to educate you as I finish the last slice of the Crow Pie I've just been served.

From what I've been able to read and understand over this past rather fruitful day, my recent criticism, while not wholly obsolete, is indeed an anachronism.  In simple terms, I've been like the guy who just can't shake his early '80s haircut, firmly embracing his mullet with conviction and defiance.  So let me go from Joe Dirt to pay dirt and set the record straight on today's EB-5 Regional Center opportunities:

1- There are dozens of EB-5 Regional Centers approved.  Many are duds, some are okay, and a few are rare gems, not ONLY delivering the promised permanent residency but giving investors actual returns on investment.  (Now, THERE'S a concept; in the early years of the EB-5 the half million bucks required for an investment in a designated high unemployment zone was seen as the price of admission, no more; the notion one could actually make a buck...)

2- Some of the new Regional Centers offer very creative, intelligent business models which meet the "at risk capital" and "indirect job creation" objectives soundly, while legitimately limiting the hands-on involvement of investors who want permanent residency but don't want day to day involvement in the business.  Among the most compelling models: the "mutual fund" structure, which essentially directs investor funds to a variety of sectors, industries, and public-private partnerships, the EB-5 equivalent of "diversifying your portfolio".

Perhaps the most significant development: no longer are the EB-5 programs the exclusive territory of shady wheelers and dealers...some of the most credible names in our business are getting involved. (STOP before you email insults: I KNOW some of the veteran programs have been set up by legitimate players, but remember that the only ones I got to inspect were the ones that went kaput!)

Two South Florida immigration law colleagues, in fact, are among the legit players: Larry Behar structured Florida's first Regional Center, the prestigious Lake Buena Vista Resort Village and Spa.  And now Roger is spearheading several new centers in Florida: one focusing on commercial real estate in South Florida and the innovative Florida Overseas Investment Center , a hybrid new concept in EB-5 structure which merges multi-sector investments (geriatric care, forestry, health care, agriculture, etc.) - like a mutual.

This is exciting stuff, Folks!  It appears that under the guidance of some very committed and clear-headed experts, this whole notion of actually attracting foreign investors to the U.S. might finally be going the way Congress wanted it to go...when our economy needs it most.

Ripples from Broken RE Bubble Hobble Foreign Investors

The Wall Street Journal reported today that Mexico's prominent Cababie family, owners of the respected Grupo Gicsa development company, is "potentially on the hook for hundreds of millions of dollars as a result of personal guarantees they made on loans used to finance two major U.S. real-estate investments".

Those of us who advise wealthy foreign clients have been cautiously monitoring the Miami's real estate market, looking for legitimate opportunities while remaining wary of what is still a very turbulent local RE economy.  Miami RE watchers all saw the news about last month's Chapter 11 filing by downtown's "Everglades on the Bay".  What many did NOT know is that most projects like Everglades, even those financed at the height of the boom, did require personal guarantees by principals...principals whose personal fortunes are now threatened by the bursting of the bubble.

The myth that well-heeled corporations were able to circumvent the dreaded personal guarantee has slowly been shattered over the past year as more and more personal bankruptcies shadowed corporate filings, but the Cababie's misfortune brings the extent of the problem to light.  When folks like the Cababie's are asked for personal guarantees, you can bet the rest of us will be asked as well.

There is a fine line between greed/recklessness and legitimate entrepreneurship, and it would be difficult for anyone to know the Cababie's legacy to characterize the family as anything but legitimate, proven investors.  Still, the need to secure guarantees for high risk ventures is obvious, and by the time Everglades on the Bay was a reality, the writing was certainly on the walls.  Given the fact that too many legitimate entrepreneurs lack the assets to guarantee innovative and job-creating projects, the chilling effect on local economies of this latest news is easy to foresee.

This development will likely serve to increase demands for personal guarantees, even from borrowers who have historically enjoyed corporate corporate credit without them.  Banks who have offered unsecured lines of credits to a corporate clients for years will begin asking for personal guarantees. Sadly, it will only make the credit markets that much more difficult to access for small enterprise, and barring alternative guarantee structures, means even tougher times ahead for small businesses in America.