The Specific Challenges Faced By Chinese EB-5 Visa Petitioners and What You Can Do to Conquer Them

More and more Chinese citizens have been immigrating to the United States under the EB-5 provisions, made possible by a rapidly growing economy and changing legal environment in China in the last decade or so. Citizens of the People's Republic of China who wish to immigrate to the US may face some specific challenges. However, these can be overcome with careful consideration and assistance from a qualified attorney. In this article, I will explain some of these challenges and tell you what you can do to overcome them.

One common challenge faced by Chinese petitioners is the regulation that requires evidence that the capital being invested comes from lawful sources. This may present a challenge for a few reasons. First, Chinese and American taxation and financial regulation systems are very different, so an attorney's understanding of the Chinese system-or lack of understanding-may be a deciding factor in the search for adequate evidence. Many Chinese investors may not have earned income recorded on their tax records that is sufficient to qualify them as an investor. Submission of evidence of other types of lawfully-sourced assets or income, such as loans or gifts, may be necessary. In order to address the language barrier and other complications that attorneys may face when attempting to sort through a Chinese client's finances, some attorneys may wish to hire a third party accounting firm. However, this may not be amenable to all clients, as it can be costly, and some clients may not want to share personal financial information with a third party.

In addition, tracing the path of funds may be complicated by the currency restrictions set up by the People's Republic of China. In general, the Chinese government limits the remittance of foreign currency to $50,000 per year, per person, which may necessitate a "work-around" in which family and friends are used to achieve the remittance collectively. If thoroughly documented, this has been accepted practice by the US Citizenship and Immigration Services (USCIS) in the past.

To combat the challenges posed by the "lawful sources" regulations, communication with your attorney is key. The more you communicate with your attorney, the better he or she can plan your case and anticipate any problems that may arise. Chose your attorney wisely-you want someone who will listen to you carefully, and someone with whom you feel comfortable.

There are a few other country-specific challenges that Chinese petitioners should be aware of. First, the USCIS has very specific regulations regarding the admission of current or former members of the Communist party or any other totalitarian party. If you have not been a member of the Communist party in the last five years, and you are not determined to be a threat to the security of the US, according to the statutes, you should not be inadmissible. This is something that should be thoroughly explored with your attorney at the outset. Another problem that has been reported in China is the bad practice of some agents of regional centers, who have promised an early return on investment following I-829 approval. You should be aware that any agreement about redemption made prior to I-829 approval is impermissible, and may result in the revocation of an approved I-526. Beware of any agents of regional centers who make offers that seem too good to be true.

While there are specific challenges that face Chinese EB-5 petitioners, effective and frequent communication with your attorney can help you to overcome these challenges or prevent their occurrence altogether. I frequently tell my clients that one of the best things they can do to help their chances of success is to become engaged in their case. Educating yourself and participating fully in the petitioning process can help your chances of a successful EB-5 visa application and gaining a new life in the United States.

 

Vaughan de Kirby
California Immigration Attorney

EB-5 Regional Center Program Ends 12/22/17

Congress has extended the current Regional Center program to December 22nd, 2017, at which time it will sunset unless extended. We anticipate future legislation that will call for an increased investment amount and more stringent requirements. For this reason, we recommend to our clients that they take action under the current law if at all possible.

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