By Elizabeth Peng and Cletus Weber
It is well-known that one of the main reasons individuals from mainland China seek to immigrate to the U.S. is for their children’s education and future.
Chinese parents are increasingly worried about how authoritarian education styles, long hours of study, and fierce competition are affecting their children. In addition, never-ending food safety issues and ever-worsening pollution continue to speed the pace of emigration by wealthy families out of China. Simply put, many parents in mainland China want their children to enjoy a Western education, fresh air, and safe food in America. This means that children’s needs are often the key to determining how parents choose to immigrate. This article provides several case studies based on actual immigrants designed to serve as general reference points in the immigration planning process.
Several Common Immigration Categories Used by Chinese Families
Overall, the three most common employment- or investment-based immigrant visa categories pursued by Chinese immigrants are
- Direct EB-5;
- Regional Center EB-5; and
- EB-1C Multinational Executives or Managers.
1) Direct EB-5: Investors invest $500,000 or $1 million into a new commercial enterprise, which must lead to the creation of at least 10 full-time employment positions for U.S. workers. Investors must be engaged in the enterprise either actively, where the investor manages and operates the enterprise directly, or passively where the investor is a limited partner who votes on major business decisions but does not participate in day-to-day management. Most direct EB-5 investors want to maintain close control over their investment, and therefore choose to manage and operate the enterprise directly.
2) Regional Center EB-5: Investors invest $500,000 or $1 million in a project affiliated with a USCIS-approved regional center. The investor need not participate directly in the management of enterprise. The project must create at least 10 full-time jobs directly or indirectly, as calculated by a reasonable economic methodology. Currently, all of the regional center EB-5 projects on the market involve investment projects in Targeted Employment Area (TEAs) at the $500,000 investment level.
3) L-1A to EB-1C Multinational Executive or Manager: An individual who has been employed as an executive or high-level manager outside the U.S. for at least one out of the past three years can apply for a green card through EB-1C. The individual will need to be transferred to a U.S. subsidiary (or affiliate, parent, or branch) of the company, and will continue to be employed as an executive or manager provided the U.S. subsidiary company has been doing business for at least one year. If the U.S. subsidiary is brand new or has been doing business for less than one year, the individual can first apply for an L-1A visa to undertake employment with the U.S. subsidiary, and then apply for a green card through EB-1C after the U.S. subsidiary has been doing business for one year. The regulations for L-1 visas and EB-1C are nearly identical, with the only difference being that for EB-1C, the U.S. subsidiary company has to meet the requirement of doing business for one year. In practice, however, USCIS reviews EB-1C petitions with a higher level of scrutiny than L-1A petitions.
Compared to EB-5, EB-1C has the following advantages:
- There is no minimum investment requirement
- There is no requirement to prove lawful source of invested capital
- There is no backlog for immigrant visas in the EB-1 category currently
- The green card grants permanent residence
- There is no requirement to hire a certain number of employees.
However, EB-1C has the following disadvantages compared to EB-5:
- Uncertainty: To apply for a green card through EB-1C, the U.S. company must have good performance and a sufficient number of employees. Although the law does not require a minimum number of employees, USCIS often denies cases where the company is relatively small and has a relatively simplistic organizational structure. Thus, outcomes are very unpredictable for EB-1C petitions by small companies.
- Strict review by USCIS: USCIS is very strict in its review of EB-1C cases, especially for smaller companies. Petitioners often need to provide a tremendous amount of evidence to prove the performance and development of the U.S. company as well as the applicant’s job duties as an executive or a manager. This process is very cumbersome, and results in higher attorney fees.
- The approval rate is low for EB-1C cases. Even though USCIS does not publish its approval rates for EB-1C cases, based on the writer’s substantial experience in the past, the denial rate is far higher than for EB-5 cases.
- Contrary to popular belief, getting a green card through EB-1C often costs at least if not more than the minimum EB-5 investment amount of $500,000 and takes more time and energy than an EB-5 case. It is not inherently a cheaper and easier way to get a green card. It is actually a costly, time-consuming and troublesome path to a green card.
In terms of the corporate control and management requirement, EB-1C is substantially different from Regional Center EB-5. An investor in an EB-5 regional center is usually just a limited partner of a limited partnership. Although the investor has the right to participate in policy formulation, the investor does not participate in the daily management of the enterprise in which he or she has invested or in the project for which the investment is used. In this regard, EB-1C is more similar to direct EB-5, in which the investor manages the funds and the enterprise himself or herself, although some direct EB-5 investments are structured like regional center EB-5 projects with investors not participating in daily operations.
Factors affecting U.S. immigration strategies for Chinese families
Generally speaking, prior to helping clients decide on an immigration strategy an immigration attorney should spend at least an hour consulting with the client. The following questions can help attorneys get to know the client’s overall situation, and to come up with the most appropriate immigration plan:
1) What is the primary purpose for immigrating? Are the parents the ones who want to immigrate or are they doing it solely for their children? How many children do they have? How old is each of them? Are they currently in China or the U.S.? If they are in China, when do the parents want them to start school in the U.S.?
2) How much money can the parents invest for the purpose of immigrating?
3) Do the parents want to do business in the U.S.? If yes, have they already started? Would they want to do business in the U.S. even if they did not to wish to immigrate?
4) If the parents want to do business in the U.S., how much time will they be able to spend in the U.S.? How much time will they be able to devote into running the business in the U.S.?
5) Do the parents want to have an active or passive role in business operations?
6) Are the parents familiar with U.S. culture? Do they speak English? How much do they know about operating a business in the U.S.? Will they operate the business themselves or have others help?
1) Green card through EB-1C
Example: Mr. Zhou and his wife have an architectural design company in Shanghai, China. They often hire U.S. architectural design firms as contractors to do design work. Zhou has two children: the older child is 15 years old and wants to come to the U.S. for high school, the younger child is 12 years old and wishes to go to an American junior high school. Both Zhou and his wife have bachelor's degrees in architecture from Australia. Zhou and his wife hope to send their children to the United States to go to school as soon as possible. At the same time, they want to start some architectural design businesses in the United States. Zhou and his wife speak fluent English, and have a business need to start a company in the U.S. instead of outsourcing the work to other U.S. firms. However, they currently have no formal company in the U.S. Zhou and his wife estimate that within one year, they can hire three to four employees, and in two years they may hire up to six employees. That is just a rough estimate, and the actual number of employees will depend on the actual business. Zhou was hoping to start his own company in the U.S. to further develop his architectural design business, and get green cards for the whole family.
Analysis: Because Zhou wishes to run his own business, he can choose between direct EB-5 and EB-1C. After analyzing the situation, we believe direct EB-5 is not the best approach in this case. First, direct EB-5 would not be the best approach from the children’s perspective. The I-526 petition processing time, plus a visa backlog wait time that usually takes at least a few years, means it could be years before the family got conditional green cards to allow the children to live and go to school in the United States. Although the children could apply for F-1 student visas in the interim, F-1 visas would only allow the children to attend private boarding schools, which are very expensive as tuition alone would cost nearly $100,000 per year for two children. Zhou could apply for a B1/B2 tourist visa and come to the U.S. to accompany the children so they do not have to go to boarding school, but the maximum duration of stay on a B1/B2 visa is only six months, and frequent entries for months at a time may result in denied entry.
Second, in terms of the Zhous’ business, direct EB-5 is also not the best approach. Zhou’s new company would be a professional services company, which can operate initially out of a modest office space with low overhead and does not require a startup investment of $500,000. To do direct EB-5, however, he would have to invest at least $500,000. Moreover, if Zhou opens the company in a relatively prosperous area that does not meet the Targeted Employment Area (TEA) definition, he will have to invest $1 million. In addition, direct EB-5 requires the business to have at least 10 full time employees within approximately two years, and Zhou is not sure about staffing because it depends entirely on the company’s development. What Zhou is certain of is that within two years, he may hire six employees.
In a similar case, we weighed the pros and cons with our client and believed that the L-1 visa followed by EB-1C was the best option. We filed an L-1A visa petition for the father, the case was approved two weeks later, and the two children successfully entered the U.S. with L-2 visas and started attending public schools. Since the company was new, the initial L-1 visa was valid for one year. After one year of operations, the company hired three employees and we were able to get their L-1 approved without challenge. After that, the whole family got their green cards through EB-1C within just two years.
2) Green card through regional center EB-5
Example: Mr. Li has a company in Shanghai that has been running successfully for more than 10 years. The company does media-related business and has more than 20 employees. The company does not have any business connections with foreign companies. Li’s only daughter is a sophomore at an American college and is 19 years old. The daughter really likes the U.S. and hopes to stay after graduation. She is majoring in art, however, and has learned that it will be extremely difficult to get a job in this area after graduating. Assuming she does get a job, the employer may not sponsor an H-1B visa for her. Even if the employer is willing to sponsor her H-1B visa, the chance that USCIS will select the petition for adjudication through its annual H-1B visa lottery process, the random selection process used when more petitions are filed than visas are available under the annual H-1B visa quota, is only about 30 percent. The daughter would very much like to have a green card to improve her chances of finding employment or enable her to stay and start her own art work. Li has heard a rumor that L-1 and EB-1C is the fastest and easiest way to get a green card for his family, so he is planning to open a company in the U.S. to do business. Using this company, he plans to apply for an L-1 visa and have his daughter get an L-2 visa (as she is not yet 21 years old), and then get green cards through EB-1C.
Analysis: Li is still young and very busy working at his company in China. Neither he nor his wife wants to live and work in the U.S., the only reason he would open a company in the U.S. would be to get his daughter a green card. Even if he did set up a company, he and his wife could only visit the U.S. one or two times a year so they would not be able to operate the company themselves. Further, they know nothing about managing a business in the U.S., are not familiar with the U.S. market, and do not have a strong desire to manage a U.S. company because their business focus is still in China where their company is booming. If not for their daughter, they would not even consider setting up a company in the U.S. It is only because they heard that L-1 is a shortcut to getting a green card that they decided to do L-1.
An L-1 visa and EB-1C are not the best option for Li. First, even if he were to rent an office, set up a company, draft a business plan and get an initial L-1 visa approved for one year, it would be very difficult for him to extend his L-1 visa and later apply for a green card through EB-1C because he might not have enough time to ramp up the U.S. company. Although the immigration regulations do not set a minimum number of employees for L-1 petitions, based on the writer’s experience a company that hires fewer than four employees within one year has a low likelihood of getting L-1 extension approval unless the employees are professionals, such as engineers. Li would not have enough time to come to the U.S. to launch and manage business operations, and language and cultural barriers would also likely impede his progress making L-1 extension, let alone green card application, difficult.
In addition, direct EB-5 also is not a good approach. Because Li would have very little time to manage the U.S. company in person, it would be very difficult for him to develop his business to the point of hiring 10 full time employees within two years. Even though Li may have a friend who could help him operate the company in the U.S., based on the writer’s observation having friends help with one’s business usually does not end well.
Li’s main purpose is to get a green card for his daughter, not run a business in the United States. Therefore, regional center EB-5 is the best option in this case. Since Li and his wife do not need green cards immediately, he can gift his daughter $500,000 to invest in a regional center-affiliated EB-5 project and have his daughter file the EB-5 petition as the main petitioner. With this approach, Li does not need to spend any time in the United States. By the time his daughter gets U.S. citizenship, if Li and his wife have changed their mind and decide to come to the U.S., the daughter, who will then be over 21, can submit an immediate relative petition for her parents and sponsor their green cards. That process should be fairly easy and take less than one year.
3) Green card through direct EB-5
Hypothetical Facts: Liu has a 25-year-old son who is currently pursuing an MBA at a U.S. university, and Liu himself owns a big company in China. Influenced by his father, the son grew up interested in business operations and ended up studying business administration as an undergraduate student, immediately followed by enrollment in an MBA program. Because the son is in the United States, Liu wants to develop his business in the U.S. by setting up a subsidiary and have his son operate it. He thinks this might enable his son to get a green card through EB-1C.
If EB-1C does not work, Liu prefers to do direct EB-5. Once his son graduates from his MBA program, the son will have one year of work authorization through Optional Practical Training (OPT), which will allow him to work in Liu’s U.S. company. Liu plans to gift his son $500,000 to set up the company and file an EB-5 petition. Since mainland China-born EB-5 investors have to wait for a few years until visas are available, while his son’s OPT would only be for one year, Liu’s plan is to have his son work through the end of his one-year OPT and then transfer to a new course of study in the U.S. to continue maintaining his F-1 status. By then, Liu thinks, the company will have been operating for over a year and the son could just hire someone else to manage the company. Even though the son would not be able to work in the company, he could still keep an eye on it and keep it running by hiring American managers. Liu does not want to do regional center EB-5 because he wants to set up his own business in the U.S. and hopes his son can gain business experience through his company.
Analysis: Liu sees either EB-1C or direct EB-5 as his best options. EB-1C is not the best option for Liu for the following reasons: First, his son is over 21 years old and would be ineligible to get a green card through EB-1C as Liu’s dependent. Second, the son went straight to graduate school from undergraduate studies and does not have at least one year of work experience in Liu’s company in China. Therefore, the son would be ineligible to apply for EB-1C as the main petitioner. Although the son could go back to China to work for Liu’s company for a year as a manager and then apply for EB-1C, the son is reluctant to do so.
This leaves either direct EB-5 or regional center EB-5 as possibilities. Liu does not want to do regional center EB-5, because he wants to set up his own company in the U.S. and is confident that his company will grow big enough to have more than 10 employees in two years. He also specifically wants his son to gain experience managing and operating the U.S. company. Although Liu thinks direct EB-5 will work for his son, based on the writer’s experience, this approach is not advisable for most Chinese international students. Most international students are too young to be able to successfully run a business in the U.S. by themselves. Also, because mainland China-born EB-5 investors have to wait for a few years until visas are available and they can get their conditional green cards, they need to figure out a way to stay in the U.S. legally to run the business during the waiting period, which is not easy in reality. Thus, in this type of scenario, very few people ultimately choose the direct EB-5 approach. For most Chinese international students, regional center EB-5 is the most advisable solution. The parents can gift the children $500,000 to invest in a regional center-affiliated EB-5 project and have their children file the EB-5 petition as the main petitioners.
The above three case studies illustrate that each family’s immigration planning must be tailored to its unique needs and objectives. Individuals interested in immigrating to the U.S. should consult with qualified U.S.-licensed immigration lawyers, who should get to know every client’s situation holistically before recommending an immigration strategy. In short, when deciding between EB-1C and EB-5, a basic principle is that if an individual’s sole purpose for setting up a U.S. company is to pursue a green card, then EB-1C is usually not the best option. Even if the individual succeeds in getting a green card through EB-1C, he or she likely will have invested at least half a million U.S. dollars, if not more.
Because direct EB-5 and EB-1C have many similarities, an individual who is not well suited to EB-1C is likely not well suited to direct EB-5 either. Moreover, the EB-5 visa backlog for mainland Chinese applicants can make direct EB-5 even more challenging than EB-1C, because EB-5 investors have to wait at least a few years after investing before being able to get a green card to enter the U.S. If the investor has no other way to enter and remain in the U.S. to run his or her business in the interim, the business can face great difficulties and possibly fail before the investor even obtains a conditional green card. Therefore, for the vast majority of individuals from mainland China who have the desire to immigrate for the benefit of their children, regional center EB-5 is usually the easiest and most convenient path.