Transcript:

Welcome back everyone. This is Immigration Nation Podcast. My name is Kleine. I’ll be one of your host today. And today we are chatting with an immigration lawyer. His name is Divij. And today we’re going to be talking about EB-5s, Gold Cards, the Trump administration and immigration policy, USCIS, literally everything. This is going to be a pretty all encompassing episode. So with that, I’d like to welcome Divij to the show. Thank you for being here today. Thank you for having me. Happy to be here. Yes. So to start, we would love to learn a little bit more about you. And you know what you specialize in where your law firm’s based and just a little bit about you as an immigration lawyer. Sure, my experience on immigration law dates back about ten years now. I’ve worked with a number of large and mid-sized law firms all over the U.S. Flagship Law is located on the East coast primarily, but we do represent clients in all 50 states and from all parts of the world as well. And it’s quite a lot of fun to be able to represent clients from all different walks of life. For me, the cross section of immigration law and commercial law is a huge passion project. It’s something that I’ve been very passionate about for a while. My previous experience was that of a commercial law attorney, commercial litigation attorney. So it’s really that part of the law where all my passions get to combine and I get to have the most fun. That’s amazing. This is a subject that’s very close to my heart. Happy to talk about it at length. That’s amazing. And be sure to stick around for the end of the episode too. We’re going to ask Divij his contact information, just in case anyone wants to get in contact with him, and to hear more about him and his law firm, or to see what he can do for you. So with that, let’s just jump right into it. I have several questions for you today. So first and foremost, what is an EB-5 and what are differences between an EB-5 and a Gold Card? Great question. I think in the simplest terms, an EB-5 might be described as essentially investing into the U.S. economy to revitalize it, to create jobs. And in exchange for doing that as a foreign investor, you’ll get the ability to be a permanent resident in this country. Now, this is a program that was enacted by statute in 1990. It’s a program that’s been around for over 30 years now. We’re coming up to 35. It’s a program that’s withstood the test of time. It’s a program that’s highly favored by investors all over the world, by entrepreneurs all over the world. And in 1992, the program was expanded, to include what’s called regional centers. So larger projects as against a smaller entrepreneurial project, which is able to bring in more investors, bring in a larger group of people to collaborate, create more jobs. Let’s say build a building, make a hotel, set up a medical services unit somewhere. And that’s really the part of the program that tends to need reauthorization that does require reauthorization every few years. It has consistently been reauthorized with the exception of a brief pause between 2021 and March of 2022, when Congress just failed to pass any reauthorization legislation. Gotcha. So with this whole new policy, I guess, from the Trump administration, Gold Cards, the way that I understand it, probably what most people understand is just kind of, just buying your way to citizenship is that kind of what it is? So I want to caution your listeners and your viewers from getting too focused on the rhetoric. It’s not for say, buying your way to citizenship. It is someone literally putting a good chunk of their life savings into the U.S. economy to create businesses, to create jobs, to make things work in a scenario where the world is becoming increasingly competitive. And in that sense, the proposal for the Gold Card program does not appear to be any different from the EB-5 program, with the exception that the amount invested is going up from a little over 1 million to 1.3 or 5 million to 5 million as a minimum. And we really have very little information about what the Gold Card program is going to involve.  I want to also caution you that since the EB-5 program is a statutory program, it was enacted by an act of Congress. It cannot or technically should not be unilaterally overruled and will returned by administrative action. So far, from what I can see that does not seem to be a cohesive message from the administration, apart from perhaps 1 or 2 interviews, which really speak to what the program proposes to do. Gotcha. What are some possible consequences of the EB-5 if it’s not reauthorized? Well, we’ve seen what happens when the program isn’t authorized. We have seen it in quite recent history. And I think that one of the biggest drawbacks appears to be that there’s just general uncertainty and panic in the industry. There are regional centers who have businesses and investment plans set up with certain intentions in terms of how much money they will raise, and how much time their projects have plans in terms of where they will reach in a certain time frame. Whenever there is a risk of reauthorization not occurring, that just means that new investors cannot enter. People who are already in the program and people who already have their petitions bending with the agency can very well remain in the program and wait for adjudications to occur. And let’s be clear, the biggest challenge that faces this program is the adjudicatory timeframe from USCIS in my view. Gotcha. The investment needs to remain at risk for two years. As a minimum, USCIS is traditionally seeming to take about five years to adjudicate the petition. So it’s just unreal, what a potential failure to reauthorize would mean. And under the terms of the current legislation, which was under the Immigration Reform and Integrity Act passed in March of 2022, the program is technically authorized until September of 2027. So reauthorization should not really be an immediate risk. Of course, with the rhetoric that’s out there, it’s unclear whether reauthorization is our most immediate concern or not. Gotcha. So you kind of touched on it a little bit. Which leads me to my next question. But do you think there’ll be any impact on pending or approved EB-5 petitions, could you just talk about that just a little bit more, just to alleviate any concerns? Sure. I mean, as far as— again, we don’t have a lot of information about what the Gold Card program is really proposing as a policy. But from what we’ve seen in history, existing petitions should not be impacted. There is also any effort to have a retroactive legislation come into force, because there was conversation about fraud in the entire program, though we don’t know whether the administration is talking about fraud at the investor level, where are the funds coming from or whether the administration is seeking to address fraud, perhaps at the commercial level for businesses that may not really be doing what they’re saying they’re doing. Regional centers may not really be real. And that is a real issue that a lot of my clients are facing. Hopefully there is going to be a push to actually commit to reform, make the program better, make it work for everybody. But unless that is something that is really out of the ordinary, I don’t think that existing investors have much to worry about. Of course, if it is an act of Congress and legislation is passed, Congress technically has the authority to make any legislation that proactive. So long as it does not have pecuniary impacts for individuals. So I think that any impacts on existing investors should be met with robust litigation. Now the challenge there, obviously the gums for someone who’s already put in so much money into the U.S. economy, do you really want to spend more money on litigating the subject? But let’s be clear, these are individuals who are high net worth individuals, it does not take away from the fact that it is still a significant investment that they’ve made into the U.S. they are trying to find a better future for their families, for their children. So there’s nothing to say that they are not equally entitled to challenge any unfair or perceptibly unfair actions that the administration or Congress might decide to take. Gotcha. So can you talk a little bit about the application process between the EB-5 and the Gold Card and the key differences that you see, and maybe some different routes that people can take? Because I feel like with immigration, a lot of it is just thinking outside the box to reach people’s goals. So could you maybe talk a little bit about that? Again, not a lot of information on what the paperwork is going to look like in the future. But let’s talk about the E-2 visa, for example, which is a nonimmigrant version of an entrepreneurial visa, meaning it’s a temporary visa that allows you to set up a business in the US, operate the business so long as you’re a national of a country with which the U.S. has a treaty that would allow you to get an E-2 visa. Examples of countries where my clients are, where we represent them in E-2 visas are Singapore, Japan, the UK, Italy, Israel, among many, many others. Of course, what that means is that the E-2 visa being a temporary visa, no entrepreneur really sets up a business with the intention of setting it up as a temporary operation. And the other piece of the challenge, of course, is that being the temporary means of the E-2 really, and it has no limit. You can extend the E-2 indefinitely, but practically speaking, since it’s a temporary visa, once you’ve extended a few times. One anticipates that the agency will start asking questions about whether it is in fact the entrepreneur’s intention to be in the U.S temporarily. They may have employees who are nationals of that country who are also here on E-2 visas. They might be pursuing other options in terms of having a strong, robust workforce that exists permanently in this country. So the filing process is, as far as the EB-5 program are concerned, are quite onerous. You need to demonstrate that your funds have been invested, that they’ve been invested in the new commercial enterprise. What is the new commercial enterprise? This kind of a dynamic definition depends on the nature of the business and the specific circumstances of each case. You need to demonstrate that you’ve created tenure jobs. You need to demonstrate that the funds remained invested for a period of two years, and remained at risk. Obviously that means that there’s no guarantee of refund, and you may decide to change course at any point and decide to go to a regional center. But let’s say you start with the E-2, come to the U.S, file a 526 petition initially to get a temporary green card. Your funds need to remain invested for two years and need to remain at risk for two years. By the time you get the conditional two year long green card, about five years have passed. Unless you’ve decided to go to federal court, file a writ of mandamus complaint and succeeded, which happens in some cases, but is not your only course of recourse. Some investors just choose to wait. And in that scenario, you might have a two year green card after you’ve lived in the U.S. for a certain amount of time, met your conditions for your green card, then you can request a permanent green card. Filing fees have recently increased by as much as 200% for these types of applications. That’s a huge increase. Not only in terms of percentages, in terms of the amount of money that they’re paying. They’re paying over $10,000 for filing some of the immigration fees. That’s crazy. And our role as attorneys is to make sure that as an immigration attorney, I have at least a basic understanding of the securities law implications of an EB-5 investment. I have a basic understanding of the corporate law implications. I have a basic understanding of the commercial side of each transaction. It’s not a form filling exercise, and it’s not a standard, easy petition that you can do. You have to know the law. You’re ethically, in my opinion, ethically obligated to know the elements of the law, how the various aspects of the law are going to impact your client, and then you have to collaborate with other practitioners in those specific areas of law and point your clients to them. At the same time, if I’m a corporate law attorney representing a client on an EB-5 investment and doing diligence there, I have to make sure that I’m working with an immigration attorney who knows the nuts and bolts of the immigration law aspects of the application. So I think it’s a very cohesive approach. And the fact that the processes are unclear and there’s a lot of confusion about the program is just really not doing anyone any service. And I think that if there’s one takeaway that you take from this, just keep in mind that nothing can happen quickly or as quickly as the administration seems to be saying that they will do it. Of course, they may push things through, but work with your counsel. Work with your attorneys to find out what works for you. Get the correct advice. Please, please do not rush into an investment. Do not rush into a decision that is going to hurt you and your family in the long term. Do not view it as buying a green card again, because if that were the case, the money would be going to the federal government. It would be benefiting U.S. society as a whole. That’s not what’s happening. If I invest in a regional center and the regional center is fraudulent, then the only person who benefited from the investment is the person who committed the fraud. And I may be able to recover some of it. After years of pain and litigation and heartache, but that’s really not an outcome that anyone wants. And I certainly don’t want that for my clients. And in your professional opinion, I mean, you’ve seen things change and change and change again. So just kind of forward thinking, what do you think the long term effects will be of the EB-5, of the Gold Card. If the Gold Card happens to come through and it’s like a huge success, it’s very popular and it ends up working out. In my mind, I’m thinking, well I would assume like the longevity of businesses would be extended and we’d have more money coming in and really promoting U.S. businesses and all. That’s what I would be thinking, but how do you think the EB-5, the Gold Card, would they work together? Would one kind of be more popular than the other? What are you kind of thinking there? From what I’m hearing from the administration, the effort is not to make the programs work together. It is to do away with one, which is the EB-5 program, and replace it with the Gold Card. If the administration is intending to implement a program that works in conjunction with the EB-5 program, by all means I welcome it. It sounds to me like the EB-5 program would get someone citizenship in five years, whereas the Gold Card program is proposing to get someone to the point of citizenship much quicker. How much quicker? We don’t know. But what I will say, however, is that if the EB-5 program can be reformed to make it more efficient, to make it faster, to make it better for people again. Due to scams like you were talking about earlier? Exactly. I think that that is very, very welcome. I think that the agency needs to be robust and enforcement needs to go in and find out what’s going on. When there’s allegations of fraud, it needs to be investigated and it needs to be investigated effectively and quickly. Someone needs to take that first step towards really reforming these things. I think that the 2022 legislation took many steps that will be helpful. I think that it’s a good starting point. I think that there should be bipartisan support for further reform, not only in the EB-5 program, but across immigration benefits across the board. I’m just waiting for some administration to come in. And if this is the administration to do it, great. I mean, I understand that they’re unpopular, but I’m just looking for any administration to take the next steps to help people had businesses to help the economy. I think also, you bring up a good point. I think people often forget with such large conversations to be had about polarizing topics such as immigration. They tend to forget everything that goes into it. So just like business visas or travel visas, or if someone from the U.S. were to be an immigrant in another country. They tend to forget those things. And it’s often the bigger topics that they focus on, whether people are in or out of our country. So I think you bring up a really interesting point. I just want to hear your kind of final takeaways about the immigration landscape as a whole and what we can take away from your professional opinion on EB-5s, Gold Cards just kind of everything that’s happening in our world right now. Just what is your overall take on just kind of what’s happening in immigration politics right now? I’ll start by saying what I’ve said, I think throughout this conversation, which is that we all have to do a better job of not getting distracted by the rhetoric. And that applies to everybody, colleagues who speak to each other are always kind of reminding each other to remember that we need to remain on top of the law, and we need to focus on how we make the law work for our clients, not to get pulled in by the rhetorical discussions that are happening in the public sphere, which are great. I mean, the fact that there is a focus on immigration might ultimately result in positive changes and reform to the program as a whole. But I cannot tell you how many clients have been reaching out to me saying that we did not realize that voting for this specific policy would mean that my spouse, who overstayed the visa and has not done anything wrong in their life but was wrongly charged with suspicion of shoplifting at the self-checkout line at target, is now in ICE detention. Immigration policies, I think, and immigration law per say are essentially so easy to have an impact for people’s personal lives or their financial situations, for their economic situations. That we cannot possibly overstate how important it is that this is a subject that is dealt with carefully, with deliberation, with consideration, with giving people the ability to find their way forward. Not all clients of the same. Not all cases are the same. Each case, in my opinion, over my many years of practice. I will say, have required an individualized approach. I have never to date found a cookie cutter approach that applies across cases. Anything that is being done now by this administration needs to be done with that in mind. You need to consider that at the end of the day, you’re impacting people’s livess. Whether these people are in the U.S. lawfully, unlawfully, etc. I think that is a secondary issue. They are all people and they need to be treated as such and any amount of confusion should be unacceptable. I think this administration is currently causing more confusion than… And I hate to be critical, particularly in a public forum. I don’t want to take a political stance one way or the other. I will say that, from just an empirical standpoint, in my opinion, a lot of the steps that this administration has taken have resulted in more confusion and lack of clarity than anything else. It’s causing fear, and in my opinion, begets more fear. And so, I view it as my job to make sure that when I speak to clients, I give them the answers, I give them the information. I prepare them for a scenario that might be the worst case scenario. Just so that they know what the rights are. But I wish I did not have to do that. No one is in a position to know everything. Half the time I’m researching because I need to refresh my memory on everything. So an individual who is a layperson? No way, I expect them to know at the same level. So I wish that the administration is working to keep that in mind and help them in that regard. The great news is that you’re doing your part to keep people informed and educated and to alleviate any concerns that they have. And really quick, I would love for everyone to contact Divij if you have any further questions. Divij, if you wouldn’t mind reading off your website and phone number and office locations so people could find you, that would be amazing. Sure. We have an office in Manhattan on 43rd St. We also have an office in downtown Jersey City. My website is flagshiplawllc.com Feel free to also reach me by phone (347) 766-2243. Thank you so much for visiting us today on Immigration Nation podcast. Divij, it’s been great getting to know you and talk with you today. Pleasure speaking with you. Thanks for having me.