“Luis” of San Diego, Calif. (names have been changed) was 3 1/2 years old when he came to America. Adopted by his American stepfather, he was brought to the country with his brother and two sisters, hoping for a better life. They drove into the U.S. by night, and in a road accident that resulted in their car slamming into the rear of a semi-truck, his mother and brother were killed.
“Sandra” of Germantown, Md. came to this country on an education visa. After earning her master’s degree, she took a job in the U.S. and settled down with her husband, who also lives here under a visa. In April 2012, they applied for a green card for permanent residency status. They have yet to hear back about their initial application due to the backlog at Citizenship and Immigration Services (CIS) and her husband faces the imminent termination of his work visa.
“Monica” of Pedro Escobedo, Mexico is an American citizen. She married an immigrant whose waiver for residency was denied for 10 years, four years ago. In order to keep her family together, she chose to join her now-deported husband in Mexico, where her children are losing their connection to their homeland and have to make do with fewer resources.
For hundreds of thousands of men and women, these stories are a sad reminder of their everyday struggles. In the U.S., a heated, heavily partisan fight over the status of illegal immigrants is currently erupting in the halls of Congress. With net immigration from Mexico at almost zero — with as many deportations and voluntary departures as there are new immigrants, with gross immigration being just a few hundred thousand a year and with deportations at 400,000 for fiscal year 2012 — this debate is more an argument of ideology than proactive legislation. For example, the Senate immigration bill denies an automatic path to citizenship for undocumented residents who arrived in the country after Dec. 31, 2011, or who have a gay partner legally residing in the U.S., or who may be related to an American citizen or many other disclaimers.
For one group of immigrants, however, the story couldn’t be more different. Since its conception under the Immigration Act of 1990, the EB-5 visa allowed foreigners who invest at least $1 million in the U.S. ($500,000 if the investment is made in a rural area or an area of high unemployment) and create at least 10 jobs for U.S. workers (excluding the investor’s family) preferential access toward obtaining a green card. Initially designed to encourage the creation of new businesses, modifications to the act allow foreign investors to invest in an existing business.
Prior to 2011, EB-5 was little-known, little-utilized and not taken seriously. A tedious, oppressive application process, lengthy adjudication procedures, and the suspension of more than 900 cases — some dating back to 1995 — based on reinterpretations of financial qualifications made the program extremely unpopular to immigrating foreign investors.
However, a 2011 suite of reforms to the program, including permitting petitioners to directly contact CIS adjudicators that accelerated processing of applications and the establishment of an “expert Decision Board” to assist adjudicators in forming final decisions on petitions, have more than quadrupled the application rate, with more than 3,800 applicants applying for EB-5 in 2011, compared with less than 800 in 2007.
Carlos Iturregui, a former chief of the Office for Policy and Strategy for the U.S. Citizenship and Immigration Services, argues that the EB-5 program is a good thing.
“Since the investor is granted a 2-year conditional permanent residence as well as his or her immediate family members, it allows the agency and DHS components to oversee the actual investment of $500,000 or $1,000,000 minimum and the compliance by the investor with all U.S. applicable laws and regulations,” he explained. “There is no cost to the U.S. taxpayer as USCIS is almost entirely fee-based, except for the E-Verify congressional-appropriated funding. It is smart for any country to have a diverse immigrant population and it makes sense to have a mix of humanitarian visas and investors visas.”
“Is the program perfect? No,” Iturregui continued. “But the agency is catching up to increased demand. Congress should be commended for reauthorizing the program through 2015. Hopefully, the next time around is for longer than three years or the program is made permanent. Certainty in the program will bring more needed investors.”
The EB-5 program creates a seemingly unfair double standard in regard to immigration. At a time when deportations have more than doubled, this “backdoor” route for the wealthy to enter the country with none of the hassle the average immigrant must face highlights a well-known fact in America: Money means access.
The American Dream
For those who choose to take this route, it is far from a sure thing. Those who apply must first put the investment money into escrow. Then they must file an investment proposal to a regional center, who will present the proposal to the CIS. If the CIS signs off on the proposal, the applicant is given a two-year temporary residency, in which the applicant must prove in definitive terms that he or she created at least 10 jobs not held by anyone personally attached to the applicant. Only then will the CIS grant the green card.
At any step through this progression, the CIS can stop the process and reject the applicant.
However, compared with the process a typical applicant must face to obtain a green card, the EB-5 process is a cakewalk. The path to citizenship is slightly different if you are married to an American citizen at the time of application (the spouse of an American citizen only need to be a permanent resident for three years before being eligible to take the citizenship test, instead of the usual five), but, for the most part, the process is the same:
A potential resident must apply for residency based on one of seven classes: family member sponsorship, employment sponsorship, investment (EB-5), the Diversity Lottery (an annual lottery of applications from low-immigration countries; 55,000 visas a year are made available through the lottery), refugee or asylum status, entry via “The Registry” — which, in 1972, was created by legislation to give undocumented residents at the time a chance to apply for citizenship — or approval by the director of the CIA, by executive order or by act of Congress. With the exception of the EB-5 program and government invitation, a residency application can take as long as eight years to be approved, with an initial response taking as long as two years.
A stumbling point for many applicants is the requirement to present proof of biographical information; that is, a birth certificate, evidence of citizenship in the applicant’s native country, etc. As many applicants come from countries that do not have mandated birth registries, and some came to the U.S. without the official permission of their birth countries, access to such documentation may be impossible to obtain. This would mean, unless a waiver was approved, that obtaining lawful residency in the United States is equally impossible to obtain.
The EB-5 program has raised more than $1.8 billion in investment in the 2012-2013 fiscal year and has issued 7,641 visas, 80 percent of which go to Chinese immigrants. Despite allegations of fraud in the system and the CIS slowing visa approvals and hiring economists to verify job-production claims, businesses throughout the nation — from fast food franchises to biofuel to meatpackers — are looking for EB-5 investors, which create a demand on the CIS.
In February, the federal government had filed its very first lawsuit against an EB-5 project — a proposed Chicago-area hotel and convention center that had fraudulently sold more than $145 million in securities and collected more than $11 million in administrative fees from some 250 Chinese investors. According to the Securities and Exchange Commission (SEC), the funds were misappropriated and nothing was built. The developer told the Chicago federal court that he would prefer to return the $145 million, still in escrow, to the investors.
This creates an ideological dichotomy in which those who have money are considered more worthy of an easy — not to say more corrupt — path to American citizenship than those who do not. Charles Gallagher, chair of the Sociology Department at La Salle University, argues:
“The EB-5 visa program is a ‘pay to stay’ arrangement that benefits very wealthy individuals who wish to acquire American citizenship. The only difference between the rich foreigners who can afford the EB-5 program and immigrants at the other end of the economic spectrum is that poor immigrants providing manual labor to restaurants, farmers and meat processors are allowed to remain in the shadows because they are essential to local, often rural economies. One group can purchase their citizenship while the other provides cheap labor for American citizens.”
Not everyone, however, thinks this dichotomy is wrong. Evie Jeang, managing partner of the Ideal Legal Group, feels that ultimately, the value in such a program rests in whether or not it will help the economy. If an investor is willing to spend money to create new jobs for Americans, Jeang said, then it should be acceptable and reasonable that the investor be allowed in America to be with his or her investment. When it comes right down to it, Jeang continued, the investor is more interested in coming to the U.S. than making a return on his or her money, so in making a material contribution to the well-being of Americans, the investor has the right to be an American.
However, this opportunity should be made available to anyone who can offer to the CIS a valid business plan and documented means to finance it, according to Jeang — not just millionaires. In the end, the American Dream should be made available to all, and not just those that are of a certain economic class.