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The biggest issue presently in the U.S. EB-5 investment green card program is the long quota waiting list for Chinese national investors, who comprise over 85% of all investors in the EB-5 program.  Because the waiting list may exceed 4 to 5 years before the investor can immigrate to the U.S., investors and their representatives are seeking options to be able to enter the U.S. during the waiting period, possibly work in the U.S. and have their children be able to study in the U.S.  The B-1/B-2 visitor visa generally only allows the visa holder to spend up to 6 months per year in the U.S.  This is sufficient for some investors, but not for others.

One option being considered more frequently is the E-2 treaty investor visa.  This visa can generally be issued for 5 years and can be extended after 5 years if the investment business is still viable.  It allows the investor to oversee his business, the spouse of the investor to work anywhere he or she wishes and the child of the investor to attend any level of schooling, after which he can change to a student visa.

There is only one major problem with this visa option for Chinese investors.  The U.S. does not have a bilateral investment treaty with China that enables its nationals to obtain the E-2 treaty investor visa.  For this reason, some Chinese investors are seeking to buy U.S. citizenship in a country that has a bilateral investment treaty with the U.S.  One such example is Grenada, which has a citizenship by investment program that enables Chinese investors to obtain Grenadian citizenship, often within 3 months or less.  There is no residence requirement in Grenada.

Assuming the Chinese investor becomes a Grenadian citizen, he then needs to invest in a new or existing business in the U.S.  The business must be owned at least 50% by the investor or by another individual or corporate national of the treaty country.  Surprisingly, there is no exact amount of investment.  Rather, the amount of investment varies depending upon the type of business.  For example, a consulting company requires a far less substantial investment to be viable than would a manufacturing company.  The key is that the investor must show that the amount of investment is substantial enough to create a viable business of the type contemplated.  Employment of U.S. workers, while not required, is very helpful.

The E-2 visa application can be presented at the U.S. Consulate with jurisdiction over the treaty country, or at a U.S. Consulate in the foreign national’s country of citizenship or residence.  Technically, it can be presented at any U.S. Consulate around the world where the investor appears, although application at a consulate with no relationship to the investor is often an undesirable option.

While the E-2 visa option is an answer for some investors, the long term viability of the EB-5 program is dependent upon passage of legislation by the U.S. Congress that would address the shortage of visa numbers provided for EB-5 immigrants.  Various proposals are presently being considered and will hopefully be enacted as part of comprehensive EB-5 legislation in 2016 or 2017.

 

Ronald Klasko, Klasko Immigration Law Partners, LLP
Date Submitted: 24 March 2016

The annual number of relinquishments of U.S. Citizenship has grown exponentially in just the last few years. According to data published by the U.S. Department of the Treasury, in 2015, a total of 4,279 people relinquished their U.S. citizenship, 800 more than the previous year.  In contrast, the number of renunciants was a few hundred per year when I first started practicing in this area in the early 1990s. Many attribute this dramatic increase to the Foreign Account Tax Compliance Act (FATCA), which became effective in part on March 18, 2010 and made fully effective on December 31, 2012. In an effort to increase sources of tax revenue not previously identified, this law requires all foreign financial institutions to search their records for indications that their clients are “U.S. persons” and report the assets and identities of such persons to the U.S. Department of the Treasury.

As a practical matter, the U.S. had no organized method of identifying the assets of U.S. citizens living abroad, so this legislation threatened to cut off access to U.S. financial markets to those financial institutions found not reporting the details of bank accounts held by U.S. citizens.  Many banks, not wanting to undergo the burden of reporting, but also fearing the business consequences of being cut off from U.S. financial transactions, instead started communicating with their account holders that they would have to affirmatively establish that they were not U.S. citizens and not subject not the reporting requirements.  Non-responsiveness on the part of account holders could lead to closure of accounts.  These notifications from financial institutions are, in large part, what is awakening a long-sleeping issue at this time. Professional advisors are also affirmatively contacting their clients about the United States’ renewed enforcement interest and exploring whether a citizenship decision must be embraced in this new environment.

The U.S. is one of the very few countries to impose global income taxation on their citizens, even non-resident citizens.  Many “incidental” citizens have heretofore not been aware of this requirement, or not understood the seriousness of the consequences of non-reporting.  The relatively recent focus on non-resident enforcement has caused word to be spread internationally about the changing reality and caused non-resident citizens, in unprecedented numbers, to re-evaluate the cost/benefit ratio of U.S. citizenship.

What is an “Incidental” Citizen?

There are perhaps more than 100,000 U.S. citizens who have not resided in the U.S. for any meaningful period as adults. “Incidental” citizens are individuals who have either derived citizenship from U.S. expatriate parents while living abroad or have been born in the U.S. over the last half-century to parents of means from the Caribbean or Latin America who were looking for superior medical care in the U.S.   Incidental citizens can also be the children of parents on assignment or in graduate school in the U.S. at the time of their birth.  These incidental citizens may have also attended some schooling in the U.S. and visited from time to time on their U.S. passports. However, their lives and residence are primarily outside the United States, and they may feel a closer connection to another country and utilize their U.S. passport as merely a travel convenience and perhaps a form of insurance policy for whatever future decades may bring.

Those modest benefits may now be outweighed once the reality of the attendant responsibilities of U.S. citizenship and the reality of enforcement are understood.

Other Profiles

There is also a distinct subset of individuals who may have been born and raised into the U.S. but whose life changes in their adult years either through marriage to a spouse residing in another country, expat career opportunities, or some other life changing event where they find themselves more closely connected to another country.  Those individuals may over time apply the same cost/benefit analysis to retaining U.S. citizenship.  Political views and disagreement with the evolution of U.S. society or the direction of U.S. governmental policies may also cause individuals to consider abandoning their U.S. citizenship.

Renunciants as a Scrutinized Class

Although renunciation may be the most commonly used term when referring to loss of U.S. nationality, renunciation is only one of the seven expatriating acts that may be performed voluntarily and with the intent to relinquish U.S. nationality stated in Section 349 of the Immigration and Nationality Act (INA). The expatriating act of renunciation became an issue of media notoriety in the 1990s which was referenced in the legislative history underlying the passing of the Reed Act, which imposed the threat of permanent exclusion to the U.S. if the purpose of renunciation is determined to be taxation avoidance. Renunciants are also a class of individuals that were identified in the Federal Gun Control Act of 1968 to restrict possession of firearms or ammunition to the same extent as convicted felons. The Reed Act and the Federal Gun Control Act treat renunciants differently than those that may lose citizenship through other means, and specifically cite the act of renunciation rather than the section identifying the other methods through which citizenship may be voluntarily and intentionally relinquished.

How Does One Abandon U.S. Citizenship?

Renouncing U.S. citizenship involves a two stage, in-person interview with a U.S. Consular at a U.S Embassy or Consulate outside of the U.S. which may, or may not, trigger an “exit tax” assessed on global assets of the renunciant and could, at a later date, result in exclusion from the U.S. under the provision of the Reed Act. More common are stories of individuals who renounce their U.S. citizenship and, having not been appropriately prepared, cannot secure a visa to return to the U.S. due to a presumption of “immigrant intent” and a failure to demonstrate appropriate qualifications, including sufficient ties to their home country or country of residence.

Alternate Citizenships and Passports

If someone were to renounce their U.S. citizenship without having an alternate citizenship in place and their alternate passport valid and containing appropriate visas, they could find themselves stateless or otherwise unable to travel.

Many relinquishers hold dual nationality to which they may revert to their second citizenship upon loss of U.S. citizenship, whereas others acquire a second or third nationality on the basis of which they relinquish their U.S. citizenship. The expatriating acts of relinquishment associated with acquiring a second nationality are found in INA 349(a)(1) and (2) for obtaining naturalization in a foreign state and swearing allegiance to such state, respectively. Under limited circumstances, the acquisition of an additional citizenship with the intent of abandoning U.S. nationality can result in a loss of nationality under U.S. Immigration and Nationality laws that is technically distinct from the “renunciation” identified in the Reed Act and Federal Gun Control Act of 1968.

There are a significant number of countries that offer residency or direct citizenship by investment with varying levels of physical presence required as a prerequisite to citizenship. It’s important to determine if the potential expatriate may have ties to a particular country through ancestry or their own birth in that country that may be sufficient upon which to claim citizenship without a substantial investment.

More common are residency by investment programs, which may or may not result in citizenship after a substantial period (years) of physical presence as a prerequisite to citizenship. While there may be approximately three dozen countries that provide residency based on investment, there are only a handful of countries that do not impose a length period of physical residency in their country as a prerequisite to citizenship by investment. These programs generally require an investment in real estate and/or a contribution of a specific amount to a government program in order to secure citizenship in as short a time as a year.

U.S. nationals benefitted from visa-exempt or visa on arrival travel to approximately 172 countries and territories in 2015, substantially more than the travel benefits of holding a passport from the countries identified above in the Caribbean but not significantly different than the benefits of EU member countries that have currently open citizenship by investment programs. For frequent international travelers seeking to secure a citizenship in the European Union, the citizenship by investment programs of certain EU countries may present a viable option. However, the programs in these European countries impose additional requirements and investments in the millions of Dollars/Euros compared to similar programs in the Caribbean which require investments in the hundreds of thousands.

Certain other direct citizenship by investment programs have been rumored but not officially published. There are many countries in which large scale programs are not in place but in which citizenship may be granted in unique individual situations as a result of substantial contributions to the social, economic, and cultural development of a country.

It’s important to note that residency as it relates to the immigration laws of many countries requires a totality-of-the-facts-and-circumstances test rather than the black-and-white day counting approach common in tax laws. When seeking to secure a secondary citizenship by investment and thereafter relinquish U.S. citizenship, it is important to determine the required investment as well as the level of physical presence and period of formal residency required in that country to secure citizenship. In every case the background of the individual should be explored to determine if there are ties through residency, decent, ethnicity, cultural affiliation or existing business commitment to a specific country by which citizenship may be obtained in a bespoke manner.

Can’t Citizenship Be Shed Quickly?

U.S. citizens have an unrestricted right to abandon their citizenship.  A U.S. consular officer must make him or herself available for an initial interview followed by a “cooling-off” period, and then a second interview to determine that a renunciant is of sound mind and understands the irrevocable consequences of his or her actions.  That will likely be the last time the renunciant has a “right” to require anything of a U.S. Consular Officer as thereafter the renunciant will become “an alien” to the United States.  Therefore an appropriate level of humility and understanding is always advisable so that bridges are not burnt and appropriate visas can be issued at a future date. Those interviews will create a permanent written record of the state of mind and intentions of the renunciant as understood by the Consular Officer. Those records can be referenced throughout the renunciant’s lifetime and may impact the individual’s ability to return to the U.S.

Relinquishment of U.S. citizenship can be one of the most consequential and stressful decisions one can make. It is not unlike the decision to marry or divorce and should be approached with appropriate planning and a full understanding of any and all consequences.

 

Robert F. Loughran, Partner, Foster Global Immigration
Date Submitted: 16 March 2016

While the concept of residence planning for wealthy individuals is not new, the motives behind such considerations are continually evolving, particularly in Asia. There are various reasons why wealthy individuals may consider relocating. These reasons include quality of life, security, education and most notably tax planning.

Traditionally, and amongst Europeans in particular, the only way for a wealthy individual to reduce the tax burden and regulatory restrictions legally and in a significant manner was to relocate. The main driver for Asians, however, has typically centred around quality of life and education.

With the introduction of the Common Reporting Standard (CRS), there has now been a shift towards the tax planning aspects of residence planning for high net worth individuals in Asia. Regarded primarily as a measure to counter tax evasion, the CRS builds upon existing information sharing legislation such as the United States Foreign Account Tax Compliance Act (FATCA) and the European Union Savings Directive (EUSD).

The CRS calls on jurisdictions to obtain information from their financial institutions and automatically exchange that information with other jurisdictions on an annual basis. As of January 2016, there were a total number of 79 signatories to the CRS Multilateral Competent Authority Agreement (MCAA) which governs the automatic exchange of information under the CRS. Based on the timelines to which the various jurisdictions have committed to implementing the CRS (i.e. 2017 or 2018), it is expected that the first exchange relationships under the MCAA will become effective in late 2016 or early 2017.

This globally-coordinated approach to the disclosure of income earned by wealthy individuals does, however, introduce a level of risk in terms of the security of those individuals and their families once governments, and particularly those in developing counties, begin exchanging sensitive financial information. Relocating to another country that presents a more attractive proposition in terms of lifestyle, security, education and tax is therefore becoming a popular option to counter this risk.

Established in 2002, the Malaysia My Second Home (MM2H) program allows foreigners, who fulfil certain criteria, to legally stay in Malaysia on a multiple-entry social visit pass for an initial period of ten years and is subsequently renewable.

Malaysia offers a multi-cultural society and affordable lifestyle to its residents. The country is a member of the United Nations, APEC and a founding member of ASEAN and is also a key tourist destination, located near the equator, offering excellent beaches, breath-taking scenery and dense rainforests.

Applicants to the MM2H program are required to demonstrate the capability to support themselves financially in Malaysia without seeking employment or government assistance. Under the MM2H program, applicants are not allowed to work while staying in Malaysia and the program does not lead to permanent residence.

Successful applicants are allowed to bring their spouse and children below 21 years old; purchase any number of residential properties at a specified minimum value; purchase a locally assembled car which will be exempt from excise- and stamp- duty or import a car from their country of​ residence.

Most importantly, applicants are expected to be financially capable of supporting themselves in Malaysia. In this regard, the following is required for applicants below 50 years old; proof of bankable assets of at least MYR 500,000 (USD 135,000) and proof of income of at least MYR 10,000 (USD 3,000) per month. For applicants 50 years and above, the requirement is proof of bankable assets of at least MYR 350,000 (USD 95,000) and proof of income of at least RM 10,000 (USD 3,000) per month.

During the approval processing period, applicants are expected to open a bank account, obtain a medical report and purchase medical insurance from a local insurance company.

For applicants below 50 years old; a bank account must be opened with a deposit of at least MYR 300,000 (USD 80,000). After a period of one year, the applicant is allowed to withdraw up to MYR 150,000 (USD 40,000) for approved expenses relating to a house purchase, education for children in Malaysia or medical purposes. A minimum balance of MYR 150,000 (USD 40,000) must be maintained from the second year onwards and throughout the stay in Malaysia under the MM2H program.

For applicants 50 years old and above; the required bank deposit is MYR 150,000 (USD 40,000) and applicants are allowed to withdraw up to MYR 50,000 (USD 13,000) for approved expenses after one year. The minimum balance to be maintained from the second year onward is MYR 100,000 (USD 27,000).

In terms of taxation, Malaysia is based on the territorial source principle and therefore tax is only levied on income sourced in Malaysia. Malaysia has an extensive network of double tax agreements with other countries, which means a resident may be able claim a tax refund on foreign income taxed in overseas countries.

With over 27,000 successful applicants since inception, the MM2H program offers wealthy individuals and their families an attractive option to live in one of South East Asia’s most vibrant economies for what is considered a relatively low investment requirement when compared to other options in the region.

 

Dominic Volek, Managing Director Henley & Partners Singapore, Head South East Asia
Date Submitted: 17 March 2016

Immigration authorities in the Province of Quebec announced they will begin accepting new applications under its highly successful Quebec Immigrant Investor Program for a limited period beginning May 30^th 2016 and ending February 28^th 2017.

This comes as welcome news for high net worth individuals looking for an attractive passive investment program offering Canadian permanent residence. The Quebec program (QIIP) is the only large scale passive investment program of its kind in Canada and the second largest in North America after the US EB-5.

Under the new subscription period, Quebec will accept a maximum of 1900 applications including a maximum of 1330 from China, Hong Kong and Macao and the balance of 570 applications to be filled from elsewhere.

Additionally, starting April 1st, Quebec will accept 50 applications under its Entrepreneur program and 50 applications from Self-Employed individuals.

The QIIP 2016 program application quotas and the limited period of reception do not apply to applicants to the investor category who can demonstrate an intermediate to advanced level of French language proficiency through an approved standardized language test.

QIIP 2016 Program Highlights

To be eligible, applicants must demonstrate the following:

• A legitimately acquired personal net worth of at least 1.6 million Canadian Dollars;
• At least two years of senior managerial experience within the past five years in a private enterprise, eligible partnership, government body or NGO;
• Commit to making an interest free investment of CAD $800,000.00 in a prescribed (government guaranteed) investment for a period of five years;
• An intention to settle in the province of Quebec;
• Application processing fee of C$15,000.

Applications must be fully documented at the time of submission. Quebec policy now provides for the refusal of applications that are incomplete or otherwise inconsistent with the requirements, without requests for outstanding documentation or incomplete information.

Applications are submitted through government approved financial intermediaries who act as facilitators and are each given pre-determined allocations within the overall maximum of 1900 applications.  Applicants who wish to secure a quota position with a financial intermediary – facilitator may do so with a negotiated deposit.

For many business immigrants, one of the most significant benefits of moving to Canada, largely overlooked, can be the ability to distribute the accumulated profits of their foreign business in a tax-efficient, often tax free manner. This can represent a major financial tax benefit for individuals living in countries that impose high taxes on corporate distributions.

Interested readers are invited to complete our Free Online Evaluation to determine whether they qualify for immigration to Canada as a business immigrant. Our immigration professionals will provide an evaluation within two business days.

 

Colin Singer, Managing Partner at immigration.ca; investmentimmigration.com

Submitted on: 4 April 2016

 

Nadine Goldfoot  considers the likely impact of Britain’s possible withdrawal from the European Union for High Net-Worth Individuals and investor migrants.

The UK has long been among the world’s most appealing destinations for high net worth individuals (HNWIs) and their families looking to secure their personal and financial futures and ensure their continued prosperity for future generations. The stable political and economic climate, world-class private education system,  adherence to the principles of the rule of law, and favourable tax regimes have long established Britain as a safe haven of choice for many of the world’s wealthiest investors. The attraction  is reinforced by the appeal of  a stable and rewarding lifestyle, with a sophisticated cultural scene and all the benefits of London’s status as an international travel hub.

The UK’s place in the EU is also attractive for those looking for alternative residency and citizenship. Those settled in the UK with British citizenship can benefit from the UK’s membership by establishing themselves elsewhere in the EU. By the same token, citizenship of other member states , such as economic citizenship options in Malta and Cyprus allow beneficiaries to enjoy free movement to and establishment in the UK, without meeting any additional UK immigration requirements under the Tier 1 Investor and Entrepreneur route or otherwise.

With the impending referendum on Britain’s membership of the EU, HNWIs and their advisers must consider their long-term options in the UK and elsewhere in Europe. Questions arise around  Britain’s financial future outside of the Union,  and the continued success of the financial and real estate sectors  – prime investment options for HNWIs– will be critical.  Any consequent fall in value of the pound too could reduce the appeal of investment in the UK.

The UK’s membership of the EU forms a significant part of the country’s appeal for HNWI investors. As a member of the EU, British companies and residents enjoy easy access to the Union and its single market, despite the UK remaining outside the  Schengen agreement. In addition to freedom of movement within the EU and its markets, Britain has benefited from the economic stability and prosperity of the EU, establishing itself as a perfect hub for multi-national organisations looking to reap pro-business economic rewards.

While the Brexit issue does create a degree of economic uncertainty, Britain remains a highly attractive destination for HNWIs looking to diversify their wealth whilst acquiring residence rights in a jurisdiction of economic and political stability. Britain’s private education system remains one of the most highly sought-after in the world. The British passport will continue to open doors (and borders) across the globe, regardless of any re-structuring of the UK’s relationship with the EU. The ESTA arrangement with the USA will continue to appeal to HNWIs from Africa, Asia, the CIS countries and the Middle East, who are already flocking to the UK for enhanced security and wealth planning. Britain’s history of cultivating the rule of law and its reputation for personal safety and security is likely to endure long after the issue of Brexit has receded.

A more important question from an investor migration perspective, is whether, in the event that Britain votes ‘leave’ on the 23 June,  investor migrants who have acquired citizenship in the UK other EU member states will continue to benefit from rights of free movement and establishment into and out of the UK.  If they do not, will these citizenship options  maintain their attractiveness? In the event of a no vote what rights will HNWIs settled in the UK have around the EU? What rights would HNWIs who have chosen Maltese or Cypriot citizenship programmes have to reside or settle in the UK and how will this impact investor migrant choices in the future?

Moreover, prospective investor migrants will have one eye on the recent turmoil in Europe resulting from the ongoing migrant crisis. Certain EU members states have recently raised concerns over the future of the Schengen zone in light of the security issues stemming from uncontrolled migration, and these concerns are certainly worth bearing in mind when considering the value of investor migration programs in countries such as Portugal for example where access to the Schengen zone reinforces  its appeal.

Britain’s overall appeal to HNWI investors is likely to endure  in the face of the threat to its membership of the EU. Britain continues to attract wealthy investors from all over the world for myriad reasons, including access to education and healthcare, a flourishing property market, and personal and legal security of assets. Britain, however, is only one of several  jurisdictions in the EU that offers appealing residence and citizenship options for HNWI. In the event of a no vote on 23 June, the impact of Brexit on HNWIs who have opted for one of the alternative solutions will remain to be seen, if they can no longer enjoy unfettered access to Britain – by no means certain at this point.

 

Nadine Goldfoot, Partner, Head of Investor Immigration, Fragomen Woldwide, London

Date Submitted: 21 March 2016