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Retrogression and the U.S. EB5 investor Immigration Program and How a Little Known Canadian Option May Just be the Solution for Many Chinese Investors Who Otherwise May be Backlogged by the U.S.

In a January 18, 2013 article by American Immigration Lawyers Tammy Fox-Isicoff and H. Ronald Klasko, the subject of retrogression in the EB5 investor immigration category was canvassed. The distinguished attorneys wrote, “The EB-5 quota for China is expected to retrogress in 2013. This quota retrogression will impact not only EB-5 filings for Chinese nationals, but also EB-5 investments for applicants from other countries.” The authors went on to outline a number of likely developments that will take place as a result of this retrogression that will heavily impact investors from China who have historically made up approximately 80% of the world’s EB-5 investors coming to the United States under the EB5 program.

The authors make a particularly important point when they state, “With quota retrogression, it may be several years between the filing of the form I-526 and the time the investor can lawfully immigrate to the United States and manage his investment. For nationals of countries with investment treaties with the U.S., this problem is solved by the availability of the E-2 visa, which allows the investor to come to the U.S. to oversee the investment. However, no such treaty exists for Chinese nationals.”

The article goes on to pinpoint several other complicating aspects of retrogression. They mention its impact on Chinese children and the Child Status Protection Act (“CSPA”) for example. They point out that the length of the quota retrogression will extend the time when the investor can have his investment capital returned. They suggest that it will be difficult if not impossible to predict when any particular investor’s priority date will be reached and therefore it will be next to impossible to predict when an adjustment of status application cN be filed and when a conditional immigrant visa interview can be scheduled.

No doubt many Chinese investors will be prepared to put up with these extra hardships. But not every such investor will. And for those Chinese investors who speak at least some English and are prepared to take an active role in business, there is a Canadian option that may just be the solution for there needs.

That Canadian solution is contained in Section 205 of the Canadian Immigration and Refugee Protection Regulations. That provision enables investors who wish to come to Canada to set up businesses that will benefit the economic, social or cultural life of Canadians to get work permits. What is more, after one year of working in Canada in their businesses, such investors are able to apply for permanent residence under the Canadian Experience Class.

Thus for example, a Beijing businessman who wants to transfer himself and his family to North America can get a quick work permit to come to Canada with his family if he incorporates a company, establishes an office with phone and fax and maybe a web site, registers with Revenue Canada, opens a bank account and deposits a reasonably workable sum of money and prepares a business plan to start a business in Canada. As part of his efforts he will need to gain the support of government agencies and public organizations in Canada who will write letters of support for him. These are all steps our law firm can help him undertake and they will lead to a work permit for him and visas for his wife and children to live in Canada.

In the charts that accompany this article, I provide a comparison of this Canadian option with the U.S. EB5 program to help readers better understand how much of a benefit this visa could be for such investors. Anyone interested in pursuing this further should contact me to discuss the matter further.
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