Posted by: Floyd J Fernandez, J.D. | May 1, 2017

April 30, 2017–The Humble Alcalde

An “alcalde” is someone who, in old Spanish culture, is a mayor or landowner or someone who possesses a combination of legal knowledge, common sense, and wisdom built from years of success and failure.  He is then called upon from time to time to speak of matters of concern and dispute, and then, after making his decisions, he gets on his horse, and rides home.  In the nation-state of Texas which I call my homeland-within-a-homeland, there is a tradition of the marriage of that figure and the larger-than-life rural life that lies at the core of what defines the people called “Texans”, whether by that anglified name or by the name that it came from, “Tejanos.”  Indeed, Oran Roberts, who as governor of Texas signed the bill into law that created the University of Texas Law School, was late one of its first professors and was nicknamed “The Old Alcalde.”

These days we could use a lot more of the understanding that would arise from such uncommon “common” wisdom.  And no place is that true more than in the immigration field now.  There are 3 different places where that lack of common sense lies: 1) the controversy of the EB-5 Visa and its failure of renewal amid allegations of fraud, the failure of business ventures by unqualified immigrants (especially from China), and the glut of applications from China that are questioned as to their motivation, and the proposed 60-80% increase in the minimum investment required for an EB-5 investor; 2) the controversy of the H-1B visa and its record of both real and fanciful abuses and the contest of what its effect on the American economy may be; and 3) the spate of Executive Orders from President Trump, and the attack on every single one of them by the political Left in the federal courts, mostly in the Ninth Circuit region of the American West.  (And yes, I do support the breakup of the 9th Circuit, to isolate California and Hawaii, so that the interests of people in Bozeman, MT, Moab, UT, and Wilcox, AZ are not at the mercy  of the biases of people in San Francisco.).


I am merely an observer, but one who is getting the clear idea that the program is a case of a great idea that is completely misapplied to people who are in no wise equipped for the activity they are required to fund in return for permanent legal residence, and handled by people who are not equipped to run the business investments that underlie the program.  That is especially true in the USCIS Regional Centers, a creation intended to rejuvenate economically depressed areas but which have become recipes for ensuring lost access to business development due to mismanagement.

It appears that most of the applicants for the EB-5 are the families of the upper middle class and upper class in the Third World, especially from China, but also India, South Korea, and Brazil.  It is being used as a means of obtaining visas for young people, some barely out of their teens, so that they can attend college for in-state tuition.  But the problem that exists is that they could come to their 2 years of their conditional residency, file their I-829, thinking it’s just the formality after their I-526 approval, only to find that their application is denied, their eligibility is gone, and their education wasted with a huge investment lost.

The truth is, a change in the EB-5 would fit so many of these people.  They are not equipped to create restaurants or laundromats, hiring low-income people who may or may not need serious job training as a part of the process of getting the requisite number of jobs to ensure completion of the EB-5 holder’s permanent residency.  These young people are better suited as engineers, e-commerce designers, complex software developers, marine biologists and chemists and applied science consultants.  Not only their talents, but the money raised by their desperately sacrificial parents are much better suited to the kind of business development that arises from the places of their training, American universities.

A recent proposal I recently read would be a unique opportunity for change.  I specialty EB-5 could be created, especially conditioned upon four different requirements: 1) that the beneficiary obtains the conditional green card upon admission to a U.S. university in one of the STEM categories; 2) that his financial investment is paid into a pool that would be managed by an independent money management fund; 3) that the alien obtains a terminal degree in that designated field; and 4) that the remainder of the college fund is used in a start-up business arising from one of those areas, usually a spin-off from the university from which he graduates.  While not included in the proposal, an additional requirement of a U.S. citizen co-owner in the start-up could serve as a means of obtaining U.S. worker hires.

Tomorrow, I will discuss the issue of H-1B visas and how that can be addressed, with some creative ideas on how that can be improved.

-The Humble Alcalde—


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