Welcome to the first issue of Miller Mayer’s monthly EB-5 newsletter.  Whether you are an existing or potential client, investor, or practitioner, we aim to provide you with accurate and current information regarding the EB-5 immigrant investor program.  Our EB-5 practice requires that we be privy to the very latest legislative and administrative developments and this newsletter is a way for us to share that information with you.  

Sunset of EB-5 Pilot Program. As you may already know, the law creating EB-5 regional centers is due to "sunset" (i.e., end) on September 30, 2008. Congress has extended the EB-5 regional center pilot program in the past without any problems. However, because 2008 is a presidential election year in the United States, and because immigration generally is controversial, no one knows for sure if Congress will extend the EB-5 regional center pilot program before September 30.  

Steve Yale-Loehr, as executive director of the Invest In the USA (IIUSA) association of EB-5 regional centers, is working hard to try to ensure that Congress renews the EB-5 regional center pilot program before September 30.  Several bills are pending in Congress.  One (H.R. 4890), would make the regional center program permanent. Am identical bill (S. 2751) bill has been introduced in the Senate. Another bill (H.R. 5569), would extend the EB-5 regional center program for five years.  The House immigration subcommittee approved that bill on March 12.  Efforts are also being made to attach an EB-5 extension provision to other must-pass bills.  

The law is unclear about the status of EB-5 petitions (Form I-526), adjustment of status applications (Form I-485), or EB-5 immigrant visa interviews that are pending on or after September 30 if Congress fails to extend the regional center pilot program. The U.S. Citizenship and Immigration Services (USCIS) and the U.S. State Department have not stated what they will do about EB-5 petitions that are pending on September 30 if the regional center pilot program is not extended. Based on our interpretation of the law and analogous precedents, we believe that if you obtain conditional resident status by September 30, your conditional resident status will not be revoked. However, if your EB-5 I-526 petition is pending or approved, but your immigration visa application or adjustment application is still pending on the sunset date, the status of your petition and your eligibility to apply for an immigrant visa or adjustment of status is unclear. Steve Yale-Loehr, as a member of the EB-5 committee of the American Immigration Lawyers Association, is trying to get an answer from USCIS and the State Department on this question. The agencies have not provided an answer yet, however. We will update you as more information becomes available.

Steve Yale-Loehr Quoted in the New York Times. A March 16, 2008 New York Times article about EB-5 immigrant investors quoted Steve Yale-Loehr.  In the article, he described the EB-5 program as a “win, win, win” for states seeking to create employment, businesses looking for financing and foreign investors trying to obtain green cards.  The article is available at http://www.nytimes.com/2008/03/16/realestate/commercial/16sqft.html.

Notable Success Story: EB-5 Approval for Two Investors in Same Business. Carolyn Lee recently received EB-5 approvals for two individual Korean investors who both invested in the same existing business based in New Jersey.  Both petitions were approved in a little over three months without a request for additional evidence, protecting a derivative of one of the investors from aging-out.  

Carolyn Lee a Panelist on Upcoming ILW.Com EB-5 Seminar. Carolyn Lee will be a panelist on a March 20, 2008 ILW.com telephone seminar that will provide an overview of the EB-5 immigrant investor category.  The seminar is part of a series of seminars dealing with immigration options for investors and entrepreneurs.  To learn more about the ilw.com EB-5 seminar, go to http://www.ilw.com/seminars/february2008.shtm.  

The Miller Mayer EB-5 Practice Group  

Stephen Yale-Loehr (syl@millermayer.com) is co-author of Immigration Law and Procedure, the leading multi-volume treatise on immigration law, published by LexisNexis Matthew Bender. He also teaches immigration and asylum law at Cornell Law School. Mr. Yale-Loehr has been chair, co-chair, or a member of the EB-5 Investors Committee of the American Immigration Lawyers Association (AILA) since 1996. He has set up an EB-5 listserv through AILA. Mr. Yale-Loehr also writes an annual EB-5 update article for the AILA annual conference handbook and has established the Invest In the USA (IIUSA) association to promote the EB-5 program and to liaise with the immigration agency. The IIUSA website is at http://iiusa.org/. He is also listed in Who’s Who in America and An International Who’s Who of Corporate Immigration Lawyers, where he is listed as one of the best immigration lawyers in the world. He is the 2001 recipient of AILA’s Elmer Fried Award for Excellence in Teaching and the 2004 recipient of AILA’s Edith Lowenstein Award for Excellence in Immigration Law.  

Carolyn S. Lee (csl@millermayer.com) is a partner at Miller Mayer LLP.  Before joining Miller Mayer, she practiced corporate law in New York City representing Fortune 100 companies. She graduated cum laude from Williams College in 1993 and received her J.D. from Cornell Law School in 1999, where she graduated with a specialization in International Legal Affairs. Carolyn’s practice focuses on EB-5 investors, academics, and foreign medical graduates. She has spoken as a panelist on EB-5 visas for both AILA and ILW.com, including recently as a featured panelist in an ILW.com workshop entitled “Investor Visas Workshop” (December 7, 2007).  Carolyn is also co-author with Stephen Yale-Loehr on the comprehensive EB-5 article entitled "EB-5 Immigrant Investors" published annually in the AILA Immigration and Nationality Law Handbook and reprinted at http://www.millermayer.com/resources/immigrant/eb52.html.  She also authored a comprehensive ethics article relating to EB-5 representation entitled, “Ethical and Practical Considerations in EB-5 Practice” appearing at http://www.ilw.com/articles/2007,1120-lee.shtm.  

Nicolai Hinrichsen (nh@millermayer.com) is an associate attorney at Miller Mayer LLP. Before joining the firm, he practiced international corporate law in Paris for a U.S. Fortune 500 company, and then corporate and securities law in San Francisco for a large U.S. based law firm.  Nicolai graduated from the University of California at Berkeley in 1992 and received his J.D. from Boston University Law School in 1998, where he focused on international and European Union law.  He is a member of the New York BarAssociation, the California Bar Association, and the American Immigration Lawyers Association. He is an immigrant from Denmark and is conversant in both Danish and French.