EB5 Investors Magazine (English Edition) Volume 5, Issue 1 - Page 88

excused if, prior to departing for the U.S., the individual obtains permission to reapply for admission. This is a purely discretionary determination. If an Immigrant Waiver is Not Available, Look at Non-Immigrant Visa Options When inadmissibilities render an immigrant visa unobtainable, a non- immigrant visa may be a viable option. Inadmissibilities apply to both immigrant and nonimmigrant visas, but waivers are more widely available for nonimmigrants, and for example any controlled substance offence can be waived for a non- immigrant visa, and the legal standard is lower. are those relating to security. The standard for non- immigrant waivers is not statutory but based on case law (Matter of Hranka 15 ), which has established a three-part test, including risk of harm to society if the applicant is admitted, seriousness of the applicant’s prior immigration or criminal law violations, and reasons for wishing to enter the U.S. "Medical inadmissibilities can be overcome." GETTING TO KNOW THE E AND L VISA OPTIONS Would-be EB-5 investors may find the E-2 Treaty Investor visa a reasonable substitute. The E-2, a non-immigrant investor visa, is based on bilateral trade agreements between the U.S. and other countries. Not all countries have E-2 agreements with the U.S., however, so it may not be available to all. See the U.S. Department of State Foreign Affairs Manual -- 9 FAM 402.9-10 -- for a current list of E-2 treaty countries. Like the EB-5, the E-2 is about investment in a US business. The standard term for an E-2 visa is five years. It can be renewed indefinitely. 13 Non-immigrant business visas are also available to owners and critical employees of non-U.S. companies engaged in substantial international trade when the majority of their international trade is with the U.S. This E-1 visa, like the E-2 above, is limited to nationals of countries that have a qualifying trade agreement with the United States. Another option is the L-1 intracompany transfer visa. Individuals who have been employed with a non-U.S. company for at least one year out of the last three may be eligible for an L-1 visa to enable a temporary transfer to an affiliated company in the U.S. L-1 visas are limited to three years, renewable to a maximum of seven years. 14 TIME IS ALSO ON YOUR SIDE WITH NON-IMMIGRANT VISA WAIVERS Pursuant to INA 212(d)(3), most inadmissibilities can be waived in the exercise of discretion for non-immigrant visas. The only inadmissibilities that cannot be waived 87 EB5 INVESTORS M AGAZINE Procedurally, requests for non-immigrant waivers are initiated on recommendation by the consular officer at the time of visa interview. The Foreign Affairs Manual requires assessment of the recency and seriousness of the underlying offence, reasons for proposed travel and balancing the positive and negative impact of allowing travel. 16 Everyone makes mistakes. Some can come back to haunt you. If you have erred in the past, it could affect admissibility and temporarily or permanently prevent you from obtaining an EB-5 visa, no matter how much money you spend. For most people, however, there are options. Steven D. Heller Steven D. Heller is the director of SDH US Immigration Law, Ltd., a UK-based U.S. immigration law firm established in 2008. He is also counsel to Chavin Immigration Law Office in London. He has been practicing U.S. immigration law since 1992, with interest in family matters and inadmissibility issues. Heller has worked with the U.S. Embassy in London, INS/USCIS and the New York Association for New Americans. He is a 1991 graduate of the Georgetown University Law Center and a member of the New York Bar. 1. INA§212(a)(2) 2. See 9 FAM 302.3-2(B)(4)(e). But n.b. an admission for a crime for which the individual w 2G&VBB7VGFVB6B&RFR&62f"F֗76&ƗGFWFW&֖F26VR&7F6RFW#FVƖrvFR6WF2BFRR2V&77fWBF0C#S"bFV6V&W"#BB*s#"b2R*s#""b*s#""r*s#"r"*s#"rd3" GFW"b6#dFV2c#r$b*s#"b2"*s#""b26VRvVW&ǒdC"BWB6WB*sRRbdFV2C$sbd3RB22