Millions of Chinese residents are facing unprecedented delays in immigrating from China to the US. As the number of COVID-19 fatalities continues to rise, these obstacles keeping Chinese residents locked within their borders are a tragic aspect overlooked by many.
Most countries in the world will not allow people who have been in China to enter. Further, most airlines have canceled flights to and from China, and most countries are not issuing visas to people who have been in China. One can only imagine the frustration of the residents of China who are stuck there worrying about the health of their family members, despite the fact that many of them have the means to travel abroad. Undoubtedly, millions of parents would sacrifice whatever might be necessary if they could send their children to a safer country.
While we do not know the timeline as to when the Coronavirus will peak and then be brought under control, we do know that eventually the world will recover from the Coronavirus as it did from the SARS virus in 2002. Hopefully, the numbers of deaths will not rise to the level of the Spanish Flu in 1918-1919, but it is undeniable that the coronavirus crisis will eventually come to an end, the travel restrictions will be lifted, and at some point world travel will return to normal levels.
How Chinese Citizens Prepare for Immigration to The US
When the health crisis is brought under control, there will certainly be large numbers of Chinese citizens seeking to depart from China to the United States to have a healthier and higher quality of life. People who start the process only at the end of the global health crisis will be met with delays and backlogs due to a potentially unprecedented demand.
As Sun Tzu wrote in the 6th Century in The Art of War, “The enlightened ruler lays his plans well ahead”. This saying is true for residents of China who have the desire to come to the United States as the end of the crisis. There are concrete steps that can be taken now to allow for a smooth and expeditious move to the US when it is allowed. As is the case with most things that are worthwhile in life, the path may be complex, expensive and time consuming. However, for those willing to be proactive and make an investment in the future for themselves and their family, the results may be life-changing.
The traditional solution to immigration to the US (EB-5) is no longer viable due to very long backlogs.
For many years, the preferred pathway to immigration to the US for Chinese citizens has been the EB-5 program. For the last 30 years, an investment of at least $500,000 in a “Regional Center” project bought a place on a waiting list for US Residency. The program became so popular in China that the demand exceeded the number of visas allowed by the US Congress and a wait list developed that is several years or possibly even a decade long. One of the most significant aspects of this backlog in the EB-5 program for China is that if a person starts a filing with the program now, they may not be able to immigrate to the US for up to a decade and children over the age of 21 at that time will “age out” of the program. Another recent development is that that the minimum investment amount was raised from $500,000 to $900,000 in November of 2019.
While an EB-5 application may well be part of a multifaceted long term US immigration strategy, there are concrete steps that can be taken now to allow for a long term exit from China once the crisis has ended, without waiting a decade. While these alterative pathways will not take 10 years, it is also true that none of these results in a visa immediately and all require significant preparation and financial commitment.
Possible US visa categories: L-1 visa or E-2 visa (after obtaining Citizenship by Investment in a treaty country).
L-1 intra-company transfer visa
L-1 visas are issued to executives and managers (L-1A) and specialized knowledge employees (L-1B) of non-US businesses who are transferring to a US affiliate. L-1B visas for specialized knowledge employees have come into disfavor with the US immigration agency (the USCIS) and are generally denied, however the L-1A remains a viable option. Also L-1A provides a more direct path to a Green Card.
L-1A basic elements: affiliation, time and position
The basic elements of an L-1A application are: affiliation, time and position. The basic premise of the program is that there is an international organization with a presence both outside and inside of the US and that the transferee has worked in the non-US affiliate or subsidiary in an executive or managerial capacity for one year or more. Affiliation means that both entities share common ownership, that they are sister companies under a common parent or that the US company and the Non-US company have a parent-subsidiary relationship with at least 51% common ownership. As a practical matter, a Chinese company could acquire a majority stake in a US company thus creating the affiliation, and then transfer its manager to the US on an L-1 visa.
In the adjudication of the application, the USCIS will focus most of its energy on determining whether or not the prior position in China and the future US position qualify under one of three definitions of “manager” which are: 1. Executive; 2. Personnel Manager; and 3. Function Manager. Briefly explained, an executive is a high level member of C suite management at a large organization, a Personnel Manager, manages mid-level managers who in turn manages line employees; and a Function Manager is a senior level employee who takes charge of an essential aspect of the business and who may not have direct reports but manages through internal teams with dotted-line reporting or through arrangements with independent contractors or other companies.
For US companies that are in business for less than a year when the application is filed, the government will issue a one-year “new office” visa to allow the manager to come to the US to set up the business. Toward the end of the year, an application to extend for two years will need to be filed and at that time, the company will need to show that the L-1 manager meets one of the three definitions of a “manager” as outlined above. The L-1A visa can be extended to allow for a total of 7 years of residency in the United States.
The two-step processing to obtaining an E visa for a Chinese national
It is well known that China is not among the numerous countries that have an E-2 treaty with the United States. However, there is a way for Chinese nationals to obtain an E-2 visa by first becoming a dual citizen of a country that does have an E-2 treaty with the United States. There are several countries that have programs allowing applicants to obtain “Citizenship by Investment”. Examples of countries with E-2 treaties in place that allow for Citizenship by Investment are: Turkey and the Caribbean island nation of Grenada. Each country as several options as it related to the amount of type of investment. One example is an option in Turkey that allows an individual to obtain Turkish nationality and a passport in a few months based on a real estate purchase of a home in Turkey for $250,000. Obtaining citizenship in a third country with an E-2 treaty (such as Turkey) would not only allow for the possibility of obtaining an E-2 visa for the United States, but it could also provide for a place to vacation or temporarily settle, far away from the health-related concerns in China.
E-2 Basics
E-2 visas are available to treaty nationals who own a majority share of a US business and who make a substantial investment in the US business and hire US workers. The treaty national must be coming to direct and manage the US business or to work as an “Essential Skills” worker. The law does not articulate what level of investment is “substantial”, however investments of at least $250,000 are common. These funds need to be deployed into the US economy to launch or acquire the US business and a detailed business plan demonstrating viability of the business must be submitted. The business plan should describe how the company will grow and how the number of US workers to be employed will also expand. The law does not articulate how many employees need to be hired before an application is filed, but is common for E-2 applicants to hire two or three US workers at the beginning with a plan to expand to at least 7 to 10 US workers by the end of the first five years. The business will need to show a healthy income and a number of US workers in order for the visa to be renewed (in two to five years (depending on the nationality of the applicant).
Family members of L-1 and E-2 visa holders
E-2 s and L-1s visa holders can bring a spouse and unmarried children (under the age of 21) to the US on dependent visas. Spouses can apply for work authorization and children are eligible to attend free primary and secondary public schools (through high school). Some, but not all state operated universities will allow non-immigrant dependents of individuals on work visas to pay the lower “in-state” tuition.
Options for Permanent Residence in the United States
After arriving in the United States on an L-1 or E-2 visa, individuals may be able to pursue Permanent Residence (commonly known as a green card) through one of several pathways including: EB-1C (intra-company transfer), EB-5 (Minimum $900,000 investment with job creation), EB-1A (Extraordinary Ability) EB-2 NIW (National Interest Waiver) or EB-2/3 (PERM Labor Certification). The timing and requirements of each vary, so it is important to consult closely with legal counsel to make sure that the timing fits well with the temporary visa category that has been chosen.
Think outside of the box, be pro-active. Invest in the future of you and your family.
While the situation in China and other parts of Asia including the sickness and loss of life is devastating, history tells us that this crisis will end as it did with the SARS in 2002 and with the Spanish Flu over a hundred years ago. If an individual is motivated to move his or her family to a different part of the world with a healthier environment, then it is important to take the matter seriously by creating a pro-active and perhaps multi-faceted plan. Such a plan will likely be both time-consuming and expensive. But as with other things in life, the person who plans and executes those plans will eventually see the fruits of their effort.
The Author
David R. Fullmer is has practiced immigration law for 22 years and has processed thousands of L visas, E visas and Permanent Residence applications. He is a partner at Wolfsdorf Rosenthal LLP, an immigration law firm with offices in: Los Angeles, New York, Oakland, San Francisco, Santa Monica and Shanghai. Contact David at: dfullmer@wolfsdorf.com or follow him on social media:
LinkedIn: https://www.linkedin.com/in/davidfullmer
