It’s safe to say that there is no place in the world, and certainly no state in America, quite like California—the “Golden State,” as it’s known. I’m speaking from experience—I was born in California and have lived here for most of my life. My work as an immigration attorney has led me to travel both across the United States and across the world, and my travels have given me a fresh perspective on just what makes California unique. In my mind, it’s this: in virtually all aspects—in it’s geography and climate; in it’s economy and population—what sets California apart is its incredible diversity. There is no such thing as an “average Californian.” There are people in California from all over the world, and from all walks of life.

California boasts some of the most prestigious colleges and universities in the world, including Stanford, UC Berkeley, UC San Diego, UCLA and others. There’s also far more to choose from: nearly 400 colleges, the most of any state.

In their diversity, California’s climate and geography parallel its population.  From the deserts in the South and the snowy mountain ranges in the East to the forests in the North, California includes an amazing array of climate types and geographical features. California is also one of only a small handful of places in the world that have a Mediterranean climate, similar to those countries on the coast of the Mediterranean Sea.

California has an enormously productive and diverse economy. Though estimates vary, California—if it were a nation of its own—would have one of the 10 largest economies in the world. The state is one of the nation’s leaders in agriculture, producing more fruits, vegetables and dairy than any other state.  California is also known for its wine, which rivals that of Spain, Italy and France in both volume and quality. Of course, it is also the home of Hollywood, the world’s epicenter of film and television. And the high tech “Silicon Valley,” located in Southern California, is the nation’s leading producer of computer hardware and software.

For all its richness, it’s no wonder that aspiring immigrants to the United States regard California as one of the most desirable places to live. The EB-5 visa program can make that dream possible.

There was good news for both foreign entrepreneurs and the US economy in Washington this week. On February 24, 2010, Senators John Kerry (D-Mass.) and Richard Lugar (R-Ind.) introduced The StartUp Visa Act of 2010 to the senate floor. The legislation will create jobs, increase investment in the economy, and attract immigrant entrepreneurs to the US, giving the US an advantage in the global economy.

The new legislation would add a new category to current immigration law under the EB-5 category, creating a new EB-6 category for entrepreneurs. Currently, the EB-5 law is set up to attract foreign investors by granting them a green card after they invest at least $1 million in the economy and thereby create ten jobs. The proposed EB-6 category will grant immigrant entrepreneurs a two-year visa if they can show that a qualified US investor is willing to invest at least $250, 000 in the immigrant’s startup venture. If, after two years, the immigrant can show that he or she has generated at least five jobs in the US, attracted $1 million in additional capital, or achieved $1 million in revenue, then he or she will be granted permanent legal resident status.   

This new legislation is a win-win situation for both foreign entrepreneurs and the US economy. In this crucial time of growth and recovery, I can see no downside to encouraging investment in the US economy. This is why I am joining Senators Kerry and Lugar in their support of the StartUp Visa Act of 2010.

 A recent segment on Vermont public radio reminds us how valuable the EB-5 program is amid an economic recession. According to Bill Stenger, president of Jay Peak Resort, had this to say:

“In today’s economy what is strangling the small business community in Vermont and nationally is the lack of access to capital. Affordable capital is almost nonexistent in this marketplace. However, through the EB-5 Regional Center Pilot Program at Jay Peak we are well on our way to raising 100 million of equity capital…. This country needs all the equity investment it can get right now. The EB-5 program is a wonderful example of an economic stimulus that is tax-free, not a burden to anyone, and has nothing but good benefits for all involved.”

I couldn’t agree more. The EB-5 program represents a win-win situation for all involved. Immigrant investors are given the opportunity to live, work and go to school in the United States, and the American economy greatly benefits from their investment. At a time when measures of incredible scope have been undertaken to stimulate the economy, making the EB-5 program permanent should being easy decision for Congress to make. And it should be done as soon as possible. Fortunately, it looks as though immigrant investors and American businesses may soon get their wish.

The most important advantage of the Pilot Program over the original EB-5 program is that the requirements are far easier to satisfy.

Remember that, under the first program, the investor was required to create an entirely new commercial enterprise. This condition no longer exists under the pilot program. It‘s enough to simply invest in an existing enterprise, as long as it was created after November 29, 1990.

What about creating 10 jobs? Though this is still required, the pilot program allows the jobs to be created indirectly. If the relevant statistics show that an investment of $500,000 will contribute to the regional economy in a way that will likely create or save at least 10 jobs, then this requirement will be satisfied.

Next, the “active management“ requirement. While the pilot program still technically requires the investor to participate in management or policymaking, this participation need not be anything more than symbolic. Many regional centers make investors into limited partners, which is enough to demonstrate that they are sufficiently involved. The reality is that simply making the investment in an approved regional center is enough to satisfy the active management requirement. And this means that investors and their families can live anywhere they wish, regardless of what regional center they invest in. Investors have the freedom to live wherever is best for them and their families, giving their children better access to state universities.

And, finally, the “at risk“ requirement. The pilot program continues to require that investors funds be “at risk,“ before their applications can be considered. But this condition can be satisfied in a way that offers more flexibility and security. The investor‘s capital need not actually be invested for this requirement to be satisfied–it can be held in escrow until the investor‘s Green Card application is approved.

STEP 10: Obtain Your Conditional Green Card

How you obtain your conditional Green Card--and, specifically whether an interview is required--will depend on the location at the time your I-526 petition is being processed. If you are living in the United States, you and your family will go to the local USCIS office to pick up your permanent resident Green Cards, once your application has been approved. Although local USCIS office procedures differ somewhat, no true interview is generally required.

On the other hand, if you are living outside the United States, you must first be interviewed at the U.S. Consulate or Embassy before receiving your permanent resident Green Card. First, you will receive a notification to prepare documents for the immigrant visa interview. Soon thereafter, you will be notified of the date and time of your interview. My firm will provide you with a complete immigration package to bring with you to the consulate and we will carefully prepare you for the interview process. At the conclusion of the successful interview, you will become a United States conditional Green Card holder and begin your preparations for your immigration to the United States.

No matter where you live, the only condition of your “conditional“ U.S. permanent residency Green Card is that your investment in the regional center remains intact for two years. As long as you do not withdraw your funds during this two-year period, your Green Card carries all the benefits of permanent residency. There are no restrictions on where you and your family live, work, or go to school in the United States.

STEP 8 - Compile Personal Information and Documentation

In addition to information about your investment, the U.S. government requires personal documentation for you and your family, to be certain that you are indeed who you say you are before they give you a Green Card. This documentation takes many forms, as you will find outlined in the guide to documentation later in this book. As your Investment Immigration Attorneys, we will work with you to identify those items of personal documentation that will be necessary in your particular case.

STEP 9: The Law Offices of Vaughan de Kirby Files an I-526 petition for Work Alien Entrepreneur with USCIS

 At this point, we are ready to prepare and file your I-526 petition with USCIS. In addition to the petition itself, there are two critical pieces of the application. First will be the extensive personal and investment funds documentation that you have compiled. The second critical piece will be provided by the regional center, fully documenting their regional center and their projects. The regional center plays a very important role in your application and are firmly committed to your success.

STEP 6: Transfer the Necessary Funds to the Regional Center

If you elect to invest in a regional center that offers to hold you funds in escrow, this means that your investment is placed with a third party banking institution that agrees to hold your funds until your application has been approved. In the very unlikely event that your application is denied, all of your money–the $500,000 investment and the service fee–is refunded to you. Your only cost would be the bank administrative fee, which is typically less than $500.00. My firm will not accept you as a client, and the regional center will not accept your investment, unless we are confident that you will be successful.

STEP 7: Compile Documentation of the Source of Investment Funds

The United States government requires that all funds invested in the EB-5 program be clearly traceable to their lawful source. As your immigration attorneys, we will work closely with you to help you identify and compile the documentation necessary to meet the lawful source requirement.

STEP 4: Sign a Nondisclosure Agreement

Once you have retained my firm, we will arrange for the regional center to forward to us a nondisclosure agreement. The nondisclosure agreement is mutual–it‘s meant to protect both your privacy and the privacy of the regional center. By signing this document, you are agreeing not to disclose to anyone other than your immediate family or your financial advisor any of the private financial and procedural information that the regional center will provide you. At the same time, this agreement also guarantees that the regional center will not release any of your personal information.

STEP 5: Review the Regional Center Offering Documents with Your Financial Advisor 

As your immigration attorneys we cannot serve as your financial advisors. Your investment with the regional center is a significant one, and we feel it should be made with the care that you would exercise in making any investment of this size. If you and your financial advisor determine with independent due diligence that the regional center is an appropriate investment for you, my firm will be ready to help you achieve your goal of an EB‑5 Green Card.

If after reviewing the  offering documents you decide that this is not the right investment for you, my firm will charge you NO FEE. I firmly believe that this is the way that attorneys and regional centers should do business. You should not incur costs and fees unless you decide to take advantage of this opportunity.

 If you decide to proceed, you are ready to begin making your investment.

Retain the Law Offices of Vaughan de Kirby, APC

By signing a retainer agreement with my firm, you are authorizing us to contact the regional center on your behalf and request that they provide you and your financial advisors with complete financial information for careful review. These comprehensive financial materials will enable you and your financial advisor to fully evaluate the regional center from an investment perspective. My firm still charges no fee at this point. We do not wish to collect an attorney fee until you have made your decision to move forward with your EB-5 application by investing in the regional center. 

Step 1 – Schedule a consultation with Vaughan de Kirby. 

Finding a qualified immigration investment attorney is paramount. The EB-5 program is one of the most complex areas of immigration law, and one that requires real expertise. Let’s say that you decide to contact my law firm to schedule a consultation. In our consultation, we will meet and review in detail the legal requirements of the EB-5 visa and discuss the possibility of applying for an investor Green Card. We will review your personal immigration needs to make certain that the EB-5 visa is both a viable option and indeed the best vehicle to reach your personal immigration goals, for yourself and your family. My law firm understands how important this decision is, and we are committed to equipping you with the knowledge to make the most informed decision possible. Because my firm is committed to ensuring that all our clients are well informed, we charge no fee for this consultation.