EB5 Investors Magazine Volume 7, Issue 1 - Page 63

EB5INVESTORS.COM 61 It is advisable to ensure that the information provided during the EB-5 process is consistent with prior disclosures to the U.S. government, since such information may be compared to determine the credibility of the visa applicant. ” with information provided in your EB-5 process. As an example, a list of employers provided in the I-526 petition may be compared to a prior DS-160 application for a non-immigrant visa (such as a B-1/ B-2 visitor visa) at the time of the EB-5 consular interview. It is advisable to ensure that the information provided during the EB-5 process is consistent with prior disclosures to the U.S. government, since such information may be compared to determine the credibility of the visa applicant. The consular officer’s questions during the interview may reach back to any prior U.S. visas held before by the applicant, such as a B-1/B-2 visitor visa, an F-1 student visa, J-1 exchange visitor, H-1B, L-1 work visa or an E-1/E-2 treaty trader visa. A responsible EB-5 investor should review prior U.S. immigration history prior to the consular interview. Furthermore, alien smuggling is another ground of inadmissibility that an EB-5 investor may never think will apply to him or her. However, certain consular posts are hotbeds of alien smuggling findings, particularly if an EB-5 investor previously placed a child in a public school in the U.S. as a visitor in violation of U.S. immigration law. EDUCATE THE CONSULAR OFFICER ABOUT EB-5 WHEN NEEDED Consular officers receive structured training and genera l ly have k nowledge of t he spe ci fic leg a l requirements for the type of immigrant visa they are adjudicating. However, certain consular posts process far fewer EB-5 visa applicants than others, so somet i mes consular of ficers m isundersta nd the specific requirements for EB-5 immigrant visa adjudication. For instance, consular officers have asked for specific evidence of the job-creation requirement having been met, though it is legally premature and not a legal requirement for the issuance of the EB-5 immigrant visa. The EB-5 investor must be his or her own best advocate at the consular interview, since their immigration counsel is not allowed to be present at the visa interview. KNOW YOUR EB-5 PROJECT The EB-5 investor must be familiar with the EB-5 project. The EB-5 investor w ill not be ex pected to discuss the project as detailed as the project developer; however, being familiar with the EB-5 project’s goals, budget, timeline, and current status are highly advisable. POST-INTERVIEW FOLLOW UP EFFECT OF TRAVEL BAN & PROLONGED ADMINISTRATIVE PROCESSING A t t h e c o n c lu s i o n o f a n E B-5 i m m i g r a n t inter v iew, t hree possible outcomes w ill follow: approv a l, den ia l or ad m i n ist rat ive pro cessi ng. Unde r t he T r u mp a d m i n i s t r at ion a nd c u r re nt t r a v e l b a n 3 .0 (w h i c h l a r g e l y i m p o s e s l i m i t s on t ravel to t he Un ited States from severa l predominantly Muslim nations), 6 EB-5 investors f rom b a n ne d cou nt r ie s shou ld e x p e c t f u r t he r d e l a y s o n t h e i r i m m i g r a nt v i s a i s s u a n c e a n d s u b s e q u e n t e n t r y t o t h e U. S . A l t h o u g h E B-5 investors from travel ban countries continue to be scheduled for consular interview, there are many who choose to postpone the interview. Those who decide to at tend t he consular i nter v iew should e x p e c t a pr ol o n g e d a d m i n i s t r a t i v e r e v i e w o f their immigrant visa application. Although a case-by-case waiver of the travel ban is allowed, each consular post applies the waiver process on an ad hoc basis, so it is highly recommended that EB-5 investors work closely with immigration counsel to appropriately document and present their case for a waiver of the travel ban. 7 The consular officer is neither obligated to make any decision about the applicability of the travel ban at the interview nor is he or she obligated to accept any waiver materials prepared by the applicant. The EB-5 investor should be prepared to explain at the interview in a simple yet convincing manner why he or she qualifies for a travel ban waiver and then wait for the consulate’s instructions to submit any written materials and evidence in support of the waiver post-interview. Although a case-by-case “ waiver of the travel ban is allowed, each consular post applies the waiver process on an ad hoc basis...