Photo of Kate Kalmykov

Kate Kalmykov Co-Chairs the Immigration & Compliance Practice. She focuses her practice on business immigration and compliance. She represents clients in a wide-range of employment based immigrant and non-immigrant visa matters including students, trainees, professionals, managers and executives, artists and entertainers, treaty investors and traders, persons of extraordinary ability and immigrant investors.

Kate has deep experience working on EB-5 immigrant investor matters. She regularly works with developers across a variety of industries, as well as private equity funds on developing new projects that qualify for EB-5 investments. This includes creation of new Regional Centers, having projects adopted by existing Regional Centers or through pooled individual EB-5 petitions. For existing Regional Centers, Kate regularly helps to prepare amendment filings, file exemplar petitions, address removal of conditions issues and ensure that they develop an internal program for ongoing compliance with applicable immigration regulations and guidance. She also counsels foreign nationals on obtaining greencards through either individual or Regional Center EB-5 investments, as well as issues related to I-829 Removal of Conditions.

Kate also works with various human resources departments on I-9 employment verification matters as well as H-1B and LCA compliance. She regularly counsels employers on due diligence issues including internal audits and reviews, as well as minimization of exposure and liabilities in government investigations.

I recently returned from a month in Vietnam meeting with clients and potential immigrants to the United States.  Over the course of the past five years and in my travels to Vietnam, I have watched the EB-5 program grow in popularity as a tool for Vietnamese nationals to self-sponsor for a U.S. green card.  In fact, Vietnam now ranks second in EB-5 visa usage worldwide.

The growing interest in immigration to the U.S. has also spurned in Vietnam a new trend, with some immigration agents promoting the EB-3 visa program, to target clients that cannot afford the EB-5 program or wish to spend less money to immigrate to the U.S.  This development is alarming, as in many cases, the way the EB-3 program is being described and offered to the Vietnamese public is inconsistent with the U.S. Citizenship and Immigration Service (USCIS) and U.S. Department of Labor Regulations (DOL) laws and regulations.  In the most egregious cases, these EB-3 for sale programs intentionally circumvent the legal requirements and are fraudulent.

By way of background, EB-3 stands for Employment-Based Third preference category – a concept long existent in U.S. immigration law and a valid means to a green card when properly used.  Employment-based sponsorship in U.S. immigration is divided into several preference categories, with the Employment-Based Third category being reserved for sponsorship for positions requiring:

  • Less than two years’ training or experience (unskilled workers).  This is predominately the focus of the Vietnamese EB-3 for sale programs; or
  • At least two years of experience in the field of expertise (skilled workers); or
  • A Bachelor’s degree.

The process of employment-based sponsorship in the EB-3 category entails a three step process:

1.  A PERM application is processed and filed by the employer with the DOL.  The process involves the U.S. employer engaging in various methods of recruitment to find U.S. workers for the position.  This is because the DOL’s main purpose is to ensure that U.S. workers get preference for jobs.  The DOL determines the prevailing wage rate for the position that the employer is required to pay. Only after recruitment is completed, and if the employer can show that it was not able to find minimally qualified, able, or willing U.S. workers for the position, would the DOL certify and approve a PERM application.  If the sponsoring organization receives applications from interested individuals in the U.S. in response to the ads but does not review and interview the applicants or disclose receiving the applications to the DOL, the sponsoring company and all persons involved in the process can be subject to enforcement action.

Continue Reading Permanent Residency Through the EB-3 Program: What’s Lawful and What’s Not

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