Q: How long does the EB-5 process take?
A: Absent the impact of quota restrictions and processing delays during the adjudication process, immigrating under the EB-5 provisions is typically a four- to five-year process that includes the following steps:
- Selecting and retaining a competent immigration attorney with substantial experience representing immigrant investors. Attorneys are required under state bar rules to disclose the scope of their representation and any actual or potential conflicts of interest. Most state bar associations publish reliable information concerning attorneys licensed to practice in a particular state, including years of practice, specialization certifications,(http://www.calbar.ca.gov/Attorneys/Legal-Specialization) and any public record of discipline concerning an attorney (see, e.g., http://members.calbar.ca.gov/fal/MemberSearch/QuickSearch).
- Selecting a project in which to invest.Historically over 90 percent of EB-5 immigrants have invested in a projects developed by or offered under the auspices of a U.S. Citizenship and Immigration Services (USCIS)-designated regional center.
- Working with the immigration attorney to provide, develop and implement a strategy for documenting the lawful source of investment capital and tracing the paths of these funds to the bank account of the project company. The level of complexity of this process varies considerably, depending on business and financial record-keeping practices, foreign banking regulations, and other factors specific to the investor and the investor’s country of origin.
- Preparing and filing an I-526 petition with USCIS. USCIS processing times vary considerably over time and can range from several months to over a year depending on a range of factors, including staffing levels, adjudication priorities, case complexity, and the completeness and sufficiency of the documentation submitted with the petition.
- Processing an application for an immigrant visa through the U.S. Embassy or consulate in your home country or adjusting status in the United States when a visa is available to people with your “priority date” (date of filing of I-526 petition) and country of chargeability. Note that applicants who have maintained lawful nonimmigrant status in the United States may be eligible to adjust status in the United States. All others must attend a visa interview before a U.S. consular officer in their country of citizenship or residence.
- Completing a two-year period of conditional residence. EB-5 immigrants are admitted to the U.S. as lawful permanent residents conditionally for a period of two years, during which time the investor is required to establish a permanent residence in the United States and maintain his or her qualifying investment in the EB-5 enterprise.
- Preparing, filing and awaiting adjudication of an I-829, Petition to Remove Conditions on Residence. To approve an I-829 petition, USCIS must determine that an investor has maintained his or her investment throughout the period of conditional residence and that the EB-5 enterprise has created the required jobs for qualified U.S. workers.
Q: How much must I invest to qualify under the EB-5 program?
A: The U.S. EB-5 immigrant investor program has sought to encourage investments in Target Employment Areas or “TEAs” which are either a.) rural areas; or b.) high unemployment areas, defined as areas with a rate of unemployment that is 150% the national average. The minimum qualifying investment amount was increased under the EB-5 Modernization Rule in November 2019 to $900,000 for investments in a project doing business in a TEA, and $1,800,000 for investment in projects outside of a TEA.
Q: How can I show that my funds come from a lawful source?
A: The applicable EB-5 regulations at 8 CFR § 204.6(j) state:
To show that the petitioner has invested, or is actively in the process of investing, capital obtained through lawful means, the petition must be accompanied, as applicable, by:
- Foreign business registration records
- Corporate, partnership (or any other entity in any form that has filed in any country or subdivision thereof any return described in this subpart), and personal tax returns, including income, franchise, property (whether real, personal or intangible), or any other tax returns of any kind filed within five years, with any taxing jurisdiction in or outside the United States by or on behalf of the petitioner
- Evidence identifying any other source(s) of capital
- Certified copies of any judgments or evidence of all pending governmental civil or criminal actions, governmental administrative proceedings and any private civil actions (pending or otherwise) involving monetary judgments against the petitioner from any court in or outside the United States within the past 15 years
In practice, documenting a lawful source of funds often requires an in-depth analysis of the specific source of funds contemplated to determine what kinds of documents will be needed. The assistance of an immigration attorney experienced in the preparation and filing of I-526 petitions is critical at this stage of the petition as missteps in determining and documenting the lawful source of funds can result in unnecessary delays in adjudication and even petition denial.
Call our firm at 415-503-9653 for a consultation.
Q: What is a designated Regional Center?
A: A regional center is an entity, organization, or agency that has been approved by USCIS to promote economic growth in a specific geographic area within the United States. Multiple Regional Centers may operate within a particular geographic location. Regional Center projects are typically securities offerings which involve the combination of investment capital from a number of EB-5 investors and other sources to fund multi-million dollar commercial projects which will have a substantial economic impact focused within the area of the regional center.
An investor in a Regional Center project may use statistically valid forecasting methodologies to demonstrate that investment will indirectly create the required 10 jobs per EB-5 investor through revenues generated from increased sales, improved regional productivity, job creation, or increased domestic capital investment.
Q: What’s the difference between investing in a “standalone” or “direct” project and a regional center project?
A: The principal difference is that investors in “standalone” projects may take credit only for direct job creation, that is, employees hired directly by, and on the payroll of, the company in which the immigrant invests. Investors in regional center projects, however, may count either direct or indirect jobs that can be shown by reasonable economic methodologies to have been created by the investment.
Another distinguishing factor is that a regional center may file an exemplar petition (Form I-924) with USCIS to request preapproval of a particular investment project, which, if granted, will normally be given deference when the I-526 petitions of all investors in that project are adjudicated. Assuming the absence of material changes in key factors adjudicated with the exemplar adjudication, exemplar approval may equate to less project-related immigration risk for investors.
All other EB-5 requirements including minimum investment amounts and Targeted Employment Area options at-risk requirements, and processing times are the same for both regional center and direct investments. https://www.usvisanet.com/eb-5-visa-overview/regional-centers-and-basic-program-standalone/.
Q: What if the EB-5 company in which I invest encounters difficulties or undergoes material changes before I immigrate?
A: The EB-5 Modernization Rule enacted in November 2019 includes protections for investors with approved Form I-526 petitions who might need to file a new I-526 petition due to circumstances beyond their control such as termination of the Regional Center, or business conditions which result in material changes of the project’s original business plan. The regulations now allow an EB-5 immigrant petitioner to use the priority date of an approved I-526 petition investor for a subsequently filed I-526 petition for the same unless DHS revokes the prior petition’s approval for fraud or willful misrepresentation by the petitioner, or for ineligibility at the time of filing. Importantly, however, once a petitioner uses an approved petition’s priority date to obtain conditional permanent residence, that priority date is no longer available for use on any later-filed petition.
Q: What happens if the EB-5 company in which I invest goes bankrupt?
A: An EB-5 investor is required to maintain his or her investment throughout the period of conditional residence and to prove that the investment created the required number of qualifying jobs for U.S. workers. If the EB-5 enterprise is liquidated in bankruptcy proceedings and ceases to exist or do business before an investor becomes a conditional resident, this is likely to be considered a material change requiring I-526 denial or revocation of an approved I-526 petition.
Under current regulations, an investor in this situation with an approved I-526 petition who has not yet become a conditional resident, may be able to file a new I-526 petition, retaining the priority date of the earlier approved petition.
If, however, the investor is a conditional lawful permanent resident and the required jobs have been created when the EB-5 enterprise fails or is liquidated in bankruptcy proceedings, the investor’s I-829 petition may be approved if the regional center, where applicable, continues to exist.
This is a complex situation, and the investor should seek competent immigration counsel throughout the process.
Q: What happens if my I-829 petition is denied?
A: An EB-5 immigrant whose I-829 petition is denied by USCIS may seek a readjudication of the petition before an immigration judge in removal proceedings. A decision by a judge to deny the I-829 petition and order the investor to be removed from the United States may be reviewed in federal court. Alternatively, an EB-5 immigrant whose I-829 has been denied may seek to make a new qualifying investment, file a new I-526 petition and become a conditional resident based upon approval of the new I-526 petition.
A: EB-5 applicants impacted by quota restrictions are able to file their I-526 petitions, and USCIS will adjudicate those petitions and assign a priority date to the petitioner. However, EB-5 applicants born in countries affected by the quota will need to wait for their priority date (I-526 filing date) to become current under the Department of State Visa Bulletin before they will be able to obtain visas or adjust to conditional resident status.
Depending on adjudication times at USCIS, the impact of the quota may a period of years to the EB-5 immigration process.