Opinions

Look beyond H-1B, EB-5 visa routes to work, settle in US: Mark Davies


The H-1B and EB-5 visa routes to the US are almost clogged. But there is another option for Indian nationals who wish to work and settle there – the E-2 visa. The only thing that stands in its way is a reciprocal law with the US to facilitate such visas,
Mark Davies, global chairman, Davies and Associates, LLC, tells ET in an interview.
Edited excerpts:

Is there any option to H-1B or EB-5 visas for Indian nationals?

There are many options available for Indian nationals wishing to live and work in the US. At Davies & Associates, we have considerable experience of helping Indians gain citizenship of Grenada in the West Indies. This island nation offers great business opportunities and one of the most widely accepted passports in the world. While Grenadian citizenship is not an automatic pathway to a US visa, as a Grenadian passport holder, an Indian is then eligible for an E-2 investor visa to the US. An E-2 visa offers the opportunity to invest in a small business in the US and to manage that potentially forever. Spouses of E-2 visa holders can work anywhere they want to, or engage in any lawful activity they wish to. A number of our clients have chosen to pursue this route coupled with an EB-5. E-2 processing times are very quick and this allows investors to live and work in the US while their EB-5 application is being processed.

What are the other routes available for those wishing to go to the US?

Indian nationals can expand their existing business to the US using the L-1 visa route. If a person has owned a business that he or she has worked at for over a year, the person may be able to obtain an L-1 nonimmigrant visa by opening a branch in the US. After one year, an L-1 visa-holder may be able to apply for a green card as an international manager or executive through the EB1-C programme.

Another option is to own a business in the US through the E-2 visa. India is not currently an E-2 treaty country with the USA and so Indians are not currently eligible for this visa. However, Indians who are able to claim another nationality may find themselves eligible. We have worked with our clients to secure citizenship in countries that are E-2 treaty nations, such as Grenada and Antigua in the West Indies. A $150,000 payment into Grenada’s national transformation fund or a $350,000 investment in real estate offers a quick route to Grenadian citizenship. While Grenada offers considerable business opportunities on its own, it also offers passport holders the opportunity of securing an E-2 visa. E-2 visas take just a few months to process and require an average investment of around $100,000 depending upon the business.

Is there anything that the Indian government can do to ease the travails of the educated entrepreneurial class seeking to go and settle in the US other than the EB-5 – especially on the E-2 visa front – given that the depreciating rupee has made the $500,000 investment limit too costly?

E-2 visas are restricted to the nationals of countries whose governments have a Treaty of Trade and Commerce with the US. Although India has a long history of friendly relations with the US, the two currently do not have such a treaty in place. The crucial aspect of this treaty is reciprocity, so unlike other visa categories, the US would not make Indian nationals eligible for E-2 visas without US nationals being granted reciprocal access to India.

India has a long and proud history of forging an independent trade and commerce policy, but links with the US continue to grow from strength to strength. Just a few months ago, the US granted India Strategic Trade Authorisation-1 (STA-1) status. This eased trade controls on high technology products to reflect growing defence ties between the two countries. If the US and India were able to negotiate a treaty that permits the issuance of the E-2 visa to Indian nationals then the associated growth in the Indian economy and the ability of Indians and Indian companies to transact business abroad could be explosive.

Is there political unanimity in the US on revising EB-5 investment limit?

EB-5 investment has been an important source of funds for the US real estate sector, especially since the 2008 recession. EB-5 projects have supported tens of thousands of jobs across the US and many politicians are supportive of the contribution this has made to their districts. There has been speculation that the minimum investment threshold will be increased from $500,000 to reflect the fact that it has not been subject to inflationary increases since the 1990s. One of the most important considerations for politicians is job creation, and there are no proposals to increase the number of jobs created from beyond the current minimum of 10 jobs. The regional centre programme deliberately invests in target employment areas (TEAs), which are defined as areas of high unemployment or rural areas. While we cannot be sure of what will be decided by the US Congress, it is likely that politicians who represent economically challenged districts who rely on EB-5 funding for jobs will be keen to ensure that any proposed changes do not adversely affect the potential for creating jobs.

What are the key hurdles for Indian applicants opting for the EB-5 route?

The most important aspect of an EB-5 application for Indian clients is to select the lowest risk project, to use an established and experienced regional centre and to have a well-documented source of funds. Proper due diligence on a project minimises the risks to your capital and green card. However, most Indian applicants do not hire an EB-5 lawyer with a view to conduct checks on the legal risks to their investment. A good immigration law firm will have experienced finance lawyers who can advise as to whether your capital is legally secured.

The US government is also diligent in checking where an investor’s funds came from in order to prevent corruption and money laundering. We find that many Indians sell property as a way of proving their source of funds. It is important to engage a lawyer early in the process so that they can advise an investor of whether their proposed source of funds would meet US requirements.

Is the regulatory structure in India equipped to help those wishing to go to the US and ensure that those who invest in that country do not land in any sort of legal trouble?

The problem with the legal structure in India falls into two categories: protecting investors, and allowing the remittance of foreign exchange transfer to the US. However, these hurdles are not insurmountable if clients engage a licensed law firm which is experienced in performing legal real estate finance due diligence and which has good knowledge of Foreign Exchange Management Act. Unfortunately, most parties presenting themselves in India are paid sales persons who actually have no knowledge of or training in financial analysis. These individuals receive commission on projects they are presenting and often prepare incomplete and misleading analysis. India provides no protection for Indian nationals in this context. Ask your EB-5 law firm if they can assist – some have Indian professionals who can and others do not.





READ SOURCE

Leave a Reply

This website uses cookies. By continuing to use this site, you accept our use of cookies.