Citations for ILW.COM's Seminar
Investor Options For Beginners
Session 2 held on November 18, 2009
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From Carolyn Lee
Matter of Silver Dragon Chinese Restaurant, 19 I&N 401 (BIA 8-13-86) held that failure to disclose ownership on ETA750 was material, and a willful misrepresentation and grounds for invalidation of an approved LC under 20 CFR 656.30(d) as it then existed.
Matter of Human Performance Measurement, Inc., 89-INA-269 (BALCA 10-25-91) held that where alien had close collegial relationship with owners, 4% interest, was VP of financie & marketing, director, others were the movers in the company and tho he was instrumental in development of its technology, and a close match for narrowly drawn requirements, there is a genuine need for this and a genuine opening. Followed Modular Containers.
Jil Industries, Ltd, 00-INA-63 (BALCA 8-22-00) held mere assertions of lack of ownership and control where alien at one point owned 11%, was 1 of 2 limited partners, 53 employees, previously served as President despite the fact someone else owne 77%.
"bona fide job opportunity" requirement 656.17(l) (Modular Containers codified)
Modular Containers (89-INA-228, 7/16/1991)
INA s. 203(b)(3) - EB-1-3
8 CFR 204.5(j) - EB-1-3
CIS Interoffice Memorandum from William Yates, dated May 4, 2004 (Ability to pay)
8 CFR 204.5 (g) - ability to pay
CONSULAR PROCESSING AND ADJUSTMENT
US Dept of State/NVC website:
B VISA (We did not have time to address the B visa, but it was listed as a covered topic in the promotional materials. So please include the below outline regarding the B visa for your listeners.)
Look to 9 FAM 41.31. There it makes it quite clear that consulates are to analyze the totality of the facts presented in a B visa application to make sure that that the B Visa applicant will not overstay in the US, and will return to his residence in fact abroad. The key is demonstrating the finite nature of the visit's purpose, the means to carry out that purpose in the US - primarily the financial means - and a certain return home after completion of that purpose.
- The FAM specifically directs consuls to give special consideration for business visitors - expediting applications where the applicant is coming to the US to attend "conferences, conventions, or meetings on specific dates"
- Key in the B1 business visitor context is establishing that the applicant will not be coming to the US for gainful employment
- How will consuls distinguish permissible B1 visits with gainful employment?
- They look to Matter of Hira, a 1966 case where a Hong Kong tailor came to the US to fit and measure customers for clothes to be manufactured in Hong Kong. There, the Board found that this activity was permissible B1 activity b/c the principle place of business and profit accrual was abroad. So incidental acitivty in the US for work that will principally be performed outside the US is OK.
- For entrepreneurs, look to 9 FAM 41.31 N8, dealing with FNS coming to the US for negotiations, consultations, conferences, transactions - all OK
- For investors, look to 9 FAM 41.31 N.9.7. There, it specifically says that an investor can come to the US to seek investment in the US to qualify for E2 classification, as long as there is no productive employment and no engagement of managerial duties. Similarly, though no separate FAM cite, foreign corporate executive may come to set up the US subsidiary for a later L1A visa.
- Separate FAM cite ok'ing attending board meetings.
- Evidence - equip client with evidence showing the specific purpose, and finitude of stay
- Return ticket for date certain
- Invitation letter from business/individuals with whom the investor will meet, stating date, time, purpose of the meeting
- Hotel reservations for corresponding dates
- Convention registration confirmation, trade shows.
- So we can see that we can using Bs strategically as interim solutions that will ripen into more long term, though temporary solutions, for investors.
- Key factors
- Clear intent to continue foreign residence
- Principal place of business and actual accrual of profits predominantly in foreign country
- Not primarily benefiting US; services not for which a US worker would be hired and not inherently part of US labor market
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