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Mark Ivan Davies

Mark Davies’s Answers

100 total

  • Extension of L Visa Status

    If you timely file an L1-A extension before the expiration of your current L status but the extension application is subsequently denied what is your status in the US AFTER the expiration of your initial L visa status: (1) after the expir...

    Mark’s Answer

    I agree with Mr. Segal.

    There is, in fact, a memo from what is effectively the law dept. at USCIS on this topic. If your EOS (extension of status) is TIMELY filed (i.e. before the expiration of your original L1-A status) then you are "out of status" from the expiration of your original L1 term.

    "Unlawful presence" is a different issue and there seem to be differing opinions inferred here in these answers. This is an important concept because it is unlawful status that would trigger an automatic bar on your re-entry to the US within a defined period of time. "Unlawful status" and being "out of status" are different things. The applicable period of "unlawful status" is outlined in the memo from USCIS and in the regulations. I suggest you go over this and the applicable dates very carefully with your lawyer, you may well find that your "unlawful presence" may not have begun on the same date as your going "out of status" and may only have begun on the denial of you L1 EOS application. It would really be horrible to find that you had inadvertently accrued 6 months of "unlawful presence"!

    My advice is to hire a lawyer!

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  • Immigration- L1 A visa petition approved in USA, any chances of denial of Visa by Consulate in India?

    I have been working in the USA in a reputed Big 4 (multi national company) from Oct 2013 in managerial capacity. Earlier to that I was in managerial role in the Indian subsidiary of the same company. I came to US on L1 B Visa which expired in Nov ...

    Mark’s Answer

    As an idea of the altitude of my answer, our firm files an L visa petition (or group of related petitions) for an Indian client roughly every week and has US immigration lawyers in Mumbai and Delhi who work directly with our clients there. In our experience we have only one issue in your circumstances when the consulate said that a client's Indian passport was in such poor condition that they refused to stamp a visa in it and made him get a new one first! Since then we have always asked to see the physical condition of Indian clients' passports!!

    That said, as the other lawyers have pointed-out there is ALWAYS a chance of a consular denial or administrative processing.

    I agree that you shod discuss the with your employer's lawyers who know your case.

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  • About banking for foreigners !

    Hello, I'm Here in the united state for a visit with b2 visa , i went to banks to open a bank account but I've been surprised that they're not able to open bank account for foreigners :) Anyhow, can i ask any of my American citizens whom i...

    Mark’s Answer

    You will find that different banks have different policies on this.

    We have clients who frequently open bank accounts while visiting the US on a B2 visa. One client currently in Atlanta had multiple banks offer him an account while here on his B visa. That said, we have had a couple of clients have difficulties, we have referred those clients to our bank (a major international bank with thousands of US branches) our bank has decided to open an account for those clients.

    Understand that no law firm can get a bank to open an account for you but can refer you to a bank who will follow that bank's own proceedures.

    On a separate note, the experience with opening an account form outside the United States is interesting. While many clients have told us that other lawyers have told them you cannot open an account from out side this US this is completely false. We frequently process L1, E2 and EB5 visas involving setting-up new businesses in the US. Every week of the year our bank opens bank accounts for our corporate and individual clients where the principals are out side the US. Another falsehood is that you cannot have signatory power over an account opened in this way, the bank we work with sends the "signature cards" electronically to the clients who sign them and fax them back. Again, we have no influence over our bank's decision to open or not to open an account, we merely refer our clients to them.

    You will find that some financial institutions will not do this for you. Others will.

    In summary is it completely unnecessary to open an account through a friend.

    I hope this helps.

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  • Is it allowed to foreign Eb5 investor to have an equity in real estate construction project ( ending with specific ownership ?

    for example , if a construction company is raising a fund for a mixed use real estate project , would it be allowed as per by EB Laws and regulations for the EB5 investor to own a specific plot or plots in the project after completion, like owni...

    Mark’s Answer

    Thank you of your question.

    This is a question with a seemingly simple answer that is potentially wrought with difficulties.

    Our experience is that where a deal such a transaction as you describe is in-artfully set-up without the aid of an attorney experienced in structuring EB5 transactions of this nature there are often difficulties. Amongst myriad other issues this this can include claims by the government that there is a guarantee or right of redemption in place that disqualifies the investment from the EB5 program.

    Another issue with every EB5 is making sure that you are properly covered in terms of job creation. With a "Direct" project involving construction this is potentially be a little more involved.

    Also be aware the overwhelming majority of EB5 deals are through the Regional Center program. It sounds as though you may be contemplating a "Direct" EB5 investment, that is one not involving a Regional Center. While many lawyers will tell you they have EB5 experience the reality is that few lawyers file more than a few "Direct" EB5 cases each year. I strongly suggest that you find a lawyer who does file these cases very frequently.

    We would be happy to assist you further if you like but we would need much more substantive information on exactly what you are contemplating to give you any meaningful advice.

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  • Can E2 IT consulting company owner provide his consulting services related through his company.

    Can E2 IT consulting company owner provide his consulting services related through his company.

    Mark’s Answer

    I agree with attorney Marty that this should not be an issue so long if you are truly running the business.

    Note that there are regulations that refer to "substantive change" in the business such as the "sale of a division" where "E2 employees" are involved. More than one E-2 business has had an issue with the application of these regulations that exist at 8CFR 214.2(e)(8). We have clients that face this issue as they restructure their US businesses. In those circumstances the employee may require evidence of their continued ability to work in a new capacity and depending on the circumstances might “not [be] authorized to begin the new employment until the application is approved.” 8 CFR 214.2(e)(8)(vi).

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  • Adjusting from E-2 Visa to Green Card

    I am in E-2 status and have been for a one year. We are represented by a very large law firm. We do not like the firm and are looking to new counsel. The partner there is telling me is it NEVER possible UNDER ANY CIRCUMSTANCES to adjust to a G...

    Mark’s Answer

    I agree with the other comments here.

    I have also heard a number of lawyers state that it is not possible to adjust to green card status from an E-2 visa, I always think I must be missing something when I hear that statement as there are several ways to accomplish this. While we have not had an E-2 client move to "green card" status in this way several have gotten married to United States Citizens or built their businesses to the point where they can obtain an EB5 visa.

    I do agree with the other lawyers that this is a complex decision with lots of considerations. There are some lesser known regulations that may directly impact you circumstances so I do suggest you hire a lawyer with both: (1) extensive E-2; and (b) adjustment on the basis of being an International Manager experience.

    As stated, we have never assisted an E-2 visa client adjust through the International Manager route but we have assisted many E-2 clients and L-1 clients adjust through the International Manager route. I will be in Singapore with a couple of our Indian EB5 clients who have holdings there in early April.

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  • My L1A Blanket was rejected few days back. What visa categories are my best options going forward?

    With L1A blanket rejected, what visa category are my best bets going forward. Should I go for L1B or H1B instead of L1A individual? How can I justify change is visa category from L1A to L1B (or H1B) ? How soon can I apply in each category?

    Mark’s Answer

    I agree with the other lawyer.

    Our firm handles a large number of L1 visas and I'm afraid it's impossible to advise you without more details of your case.

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  • Question on EB-5 green card application for investor in Oklahoma.

    Hello, I am working on H1B in Minnesota but I want to do investment on a company in Oklahoma so that I can file EB-5 application to get a green card. I need details and options on EB-5 application specifically in Oklahoma. Please leave yo...

    Mark’s Answer

    Thank you for your question.

    There are generally two types of EB5 cases: "Direct" and "Regional Center".

    Regional Centers have certain advantages such as the ability to utilize indirect job creation models. An experienced immigration lawyer can assist you with "immigration due diligence" (ie the risks to obtaining your green card) on the different options and can provide you with some historic data. Only a licensed investment advisor can help you analyze the business risk associated with an EB5 investment.

    While the vast majority of EB5-based visas are obtained though the Regional Program our firm is also currently working on "Direct" EB5 cases. It is important to properly understand the difference in risk and processing time between "Direct" and "Regional Center" EB5 options. Our most recent Regional Center I526 was approved in a surprisingly short 2.5 months, that would highly highly unlikely (impossible) to happen with a "Direct" case. You need to consult a licensed financial advisor re investment risk but you will find that some Regional Centers have an outstanding long-term record of no "failures".

    You should also be aware that most EB5 lawyers feel that we will reach the 10,000 EB5 visa limit for the first time this year. That would mean you would not be able to obtain your conditional "green card" until 2015. Add into that letters from politicians such as Chuck Grassley whom immigration lawyers "love" seeking to tighten the EB5 program and the case for obtaining advice from a competent immigration lawyer heightens.

    You asked for contact info. While AVVO does not allow lawyers to do that you can obtain ours by clicking on my profile.

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  • Which is better eb-5 direct investment or regional centers?

    I know the difference between them i just want to know which ir better and which has the lower risk with high percent of approval?

    Mark’s Answer

    There is no generic answer to this question. Whether a Regional Center approach or a Direct approach is best will depend on you and your circumstances and requirements. Some clients are already setting-up a US business that neatly qualifies for a "Direct" EB5 for legitimate business reasons others are not.

    Most experienced EB5 lawyers will give you immigration due diligence advice, i.e. advice on the risks to you obtaining your "green card", but will not give you advice on which EB5 project is the better investment option for you, you need a licensed financial advisor to do that.

    We are currently handling both "Direct" and "Regional Center" EB5 cases for clients. The one comment I do have is that some clients seem to confuse a level of comfort with potentially loosing their own money in a "Direct" EB5 with less risk. Do not assume that just because you are investing through a Regional Center it is more risk, a licensed financial advisor should advise you in relation to each investment you explore. In fact the two Regional Centers I can think of who have existed the longest have an excellent record of both obtaining Green Card approvals and returning their investors capital. An immigration lawyer can give you that statistical history of the different Regional Centers so you can analyze the data and draw your own conclusions together with your financial advisor.

    Where you have a well defined business project that will genuinely create 10 jobs a "Direct" EB5 can be a good option. For example, for business reasons one of our clients is currently opening a factory in the US. He is using EB5 dollars from two family investors to create 30 jobs at the factory. That type of project seems to work well for "Direct EB5" purposes.

    Anther consideration is the speed with which you want your "green card". Our most recent approval of an I-526 in a Regional Center EB5 came yesterday. Surprisingly it took less than three months to be approved (as filed at the end of Nov and was approved at the beginning of this month).

    These are some of many many factors to consider when taking on an EB5 application. You absolutely need to talk to an experienced EB5 lawyer.

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  • Creating LLC from France to obtain E-1 Visa

    I'm a french freelance journalist. I plan to create an entity in California in order to qualify to E-1 visa and then work in USA as a consultant for french magazines. Can I create an LLC online from France, with no personal address in CA ? (I'll c...

    Mark’s Answer

    This sounds like a difficult case for an E-1 but it is really impossible to tell without taking the time to properly understand your business model and learning more about your case.

    That said, we just prepared a very similar case to yours for another French national and have had several similar ones approved in the past so it is possible given the right circumstances.

    The key here is how your set-up the US business entity and how you operate your business. It is CRITICAL that you do not mischaracterize things but IF you can properly characterize it in the right way you may find that you can be successfully characterized your business as an E visa business, possibly an E-2 business rather than an E-1 business. You really do need the assistance of an immigration lawyer who ideally has a corporate lawyer he or she works with and is familiar with these structures. We have specifically and directly been told that in these cases involving someone who traditionally "consulted" the business plan filed with the cases has been "fundamental to success" (that's a direct quotation) in explaining why you are going to be a legitimate business.

    One of several other issues here for an E-1 visa is whether you have substantial trade with France; you may find that you are more properly characterized as an E-2 business, if you qualify. If your US business can be properly set-up as a business serving these magazines as clients you may be able to process as an E-2. We are actually doing several very similar French E-2 cases at the moment, given the right set-up and investment it can properly be done within the confines of the law. One important, though not necessarily dispositive, issue is whether you might have other employees as part of your immediate efforts to service these magazines.

    Contracts and support letters from your clients will be key.

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