In the US, Immigration is a high priority on the political and social agenda, an. Our next thought leader, Anthony Korda, is well-experienced in EB-5 immigration and here talks to Lawyer Monthly about the critical issues surrounding business immigration in the US. Anthony also discusses the immigration policies of the potential US Presidency, and touches on the consideration surrounding immigration litigation and how best to avoid such scenarios.
What are the hottest talking points surrounding US immigration law at the moment?
I focus my practice on EB-5 cases and given two important events in this area, this is currently a hot topic.
The EB-5 Regional Center Program (that accounts for the bulk of EB-5 cases) was due to ‘sunset’ on September 30th, 2016. As it was included in the Continuing Resolution at the end of September 2016, the program was extended unchanged until December 9th 2016.
Congress has been considering changes to the Regional Center program since last year. However, many proposals are so radical that there has been no consensus. The industry agrees that increases in minimum investment amounts, regulatory provisions and incentives for investment in rural and high unemployment areas are required and overdue. However, the more controversial provisions, in particular retroactive effect to June 1st 2015, would cause chaos and would mean that thousand’s of petitions filed since that date would be denied.
Additionally, the Vermont Regional Center Program (often held up as the ‘poster child’ for EB-5) was the subject of a fraud allegation by the SEC and, if the allegations are proved to be correct, will result in both financial loss and loss of immigration status for hundreds of innocent investors.
Do you have any opinions on the potential legislation to be implemented by the future President?
Donald Trump and Hillary Clinton have taken opposite roads on their quest for immigration reform. While Trump calls for mass deportations, migrant bans and a wall to keep away people from coming into the country, Clinton wants a pathway to citizenship, immigrant integration and protection from deportation.
Trump and Clinton both say they favor secure borders, but in every other respect they are at odds over how they plan to tackle key immigrant issues. Experts on both sides of the debate cast the candidates’ proposals as radical, arguing Trump is overtly anti-immigrant while Clinton is too lax on policies.
As an Immigration Attorney, I favor a more humane approach, but I also agree with the need to protect our borders and safeguard homeland security. Comprehensive immigration reform is overdue, and it will require a thoughtful, well-reasoned approach that avoids quick fixes and sound-bite politics.
What regulatory changes would you hope to see in regards to the EB-5 Program and how would you see these implemented?
I think that there is a need for regulation, but this should be balanced and realistic and designed to protect investors. Retroactivity will cause chaos and will serve only to punish investors who have invested in good faith. I would like to see greater numbers of visas made available to EB-5 investors, or a change in the way that visas are allocated.
While I understand the need to encourage investment in rural and high unemployment areas, I would like to see the abolition of targeted employment areas, or at least incentives that make targeted employment areas the exception rather than the rule. I would also like to see a lengthy renewal period – 5 years as a minimum – so that there is more certainty. The constant threat of a ‘sunset’ serves only to artificially increase the number of petitions filed in anticipation of changes.
You work predominantly in immigration, particularly pertaining to business immigration and litigation thereof; how do you help your clients avoid potential litigation in this regard?
First and foremost, it is important to give clients realistic expectations. Those expectations will be different in each type of case, but at a minimum I ensure that my Clients are aware of the risks, whether that involves a visa denial, a loss of investment, or other financial implications. I also work with other professionals – investment advisers and tax experts – to ensure that my Clients understand what immigration to the US can mean to high net worth individuals and to those with other source of income abroad. Finally, I make sure that my clients are aware of processing times and how long it may take to obtain a particular visa.
As a thought leader in this field, how are you currently working towards further exploring and confronting the legal challenges of working residency and immigration in the US?
When I first moved my practice to the US and became involved in Immigration and Nationality cases I soon realized that it was one of the most complex areas of law. I try to remain current with changes and, where possible, take part in consultation initiatives or meet with political representatives who may influence proposed legislation.
However, while the issue of immigration in the US (as in other countries) has traditionally been regarded as a political or economic issue, more recently there is a recognition – in some quarters at least – that there are social and human issues, such as the separation of families, the treatment of refugees and asylum seekers, racial anxieties, national identity and perceptions that traditions are under threat.
Realistic immigration reform will need to address these issues as well.
Is there anything else you would like to add?
These are challenging times and, whatever the outcome of the 2016 Presidential Election, the issue of immigration is likely to continue to be an important topic. The need to consult with an Attorney experienced in this area of law cannot be overstated.
