What changes were made to the EB-5 program by USCIS in November 2019?
The two main changes relate to the minimum investment amount and how targeted employment areas would be defined. USCIS increased the minimum investment amount from $500,000 to $900,000. For projects not located in non-targeted employment areas, the minimum investment amount has been raised from $1 million to $1.8 million. To eliminate gerrymandering, it has also defined a targeted employment area as encompassing only the census tract in which the project is located and any or all directly adjacent census tracts.
What other changes were made?
USCIS has decided to allow for “priority date retention”. This impacts primarily investors (and their children) from quota-affected countries such as China, India, and Vietnam who are subject to years-long waits for EB-5 visas. Specifically, if an investor files a petition and has it approved but has not received a visa, he can submit another petition and retain the first priority date if USCIS revokes the approval of the first petition for reasons unrelated to the investor (e.g., a project-related problem). This means that a child’s age was frozen at the time of the first petition and will not age out — become unable to receive an EB-5 visa because he or she turned 21.
What practical impact may the increase in minimum investment have?
It is anticipated that the increase will lead to a decrease in the number of investors. Theoretically, this should result in faster USCIS processing times. In addition, because Regional Centers will be competing for less investors, their proposed returns on investment may increase. Also, their administrative fees to the investor may also increase to greater than $50,000. Finally, with the limits on gerrymandering census tracts, the prestige and attractiveness of the projects may diminish.
What is the difference between EB-5 and the E-2 Visa?
The E-2 Investor visa is a temporary visa that can be prolonged indefinitely, with investment sums starting at approximately $100,000 (depending on the business). Only nationals of countries that have bilateral investment treaties qualify for the E-2 visa. The main disadvantages are that the status is temporary (unlike a green card), the investor must work in the company and reside where the company is located, and the status can be forfeited if the business experiences financial difficulties. There is no immigration analog of the E-2, so it cannot be used as a platform for a green card unless the US enterprise and investor qualify under another immigration category (e.g., EB-5). The E-2 visa application process is also subject to more consular discretion; there is no petition submitted to USCIS. This means that the E-2 decision of the consular officer is not appealable, whereas EB-5 related decisions are, in general.
For how long is the green card valid under the EB-5 program?
The investor and dependents receive a conditional, 2-year green card. During the three-month period before the expiration, a petition is submitted to the USCIS requesting the removal of the condition. The condition will be removed upon a showing that the investment has been made; there were no material changes in the investment as planned at the initial petition stage; and that ten jobs were created by the investment. After the condition is removed, a new ten-year, unconditional green card is issued.
How does the EB-5 program differ from L-1A/EB-13 visas (manager/executive transfer)?
With an EB-5 visa, you obtain a green card for permanent residence in the United States. The green card is conditional. If the investment is made through a Regional Center, the investment may be passive — not requiring daily oversight — and the investor and his family may live, work, or study where they wish.
The L-1 visa is a temporary, work visa for an executive or manager, which has the following disadvantages: 1) requires prior employment in a related company overseas; 2) may never result in permanent residence; 3) has time limits (up to 5–7 years), 4) has to be extended periodically, requiring additional filings with the USCIS and an embassy abroad; 5) a related foreign company must continue to operate while the executive or manager is in L status; and 6) ties the holder to the company in which he or she is working. If the company lays off the employee, his status is lost.
While the L-1 visa can be a first step to a green card through the EB-13 petition process, USCIS has recently cracked down on L-1 extensions and EB-13 green card petitions for managers and executives of small businesses, requiring more subordinate employees to qualify. The advantage of the EB-13 petition is that if it is approved, the green card is unconditional.
For a more detailed comparison of EB-5 and L-1A/EB-13 categories, see the Business Immigration section of this website.
How long does the EB-5 application process take?
USCIS processing times greatly vary. At one time, it was possible to obtain a green card within 6 months. Now (in 2020), the entire process takes 2–4 years. For investors from countries in which the annual quota has been exceeded (e.g, China, India, Vietnam), the process can take much, much longer because visas are not immediately available to them.
My I-526 Petition has been pending with USCIS for more than 3 years. What can I do to expedite review of my process?
Besides making inquiries directly or through your attorney or Regional Center, one may file a lawsuit in a US federal court seeking what is called a writ of mandamus. Such action brings to the attention of the court USCIS neglecting its duty to act on a petition within a reasonable period of time. The mere filing of the lawsuit alone may prompt USCIS to adjudicate the petition.
My EB-5 visa application has been pending with the US Embassy for more than a year. What can I do?
As discussed above, one may file a lawsuit to compel action by a US government agency. Just like USCIS, the consular officer has a duty to make a decision on a visa application. Holding it in limbo under Section 221(g) of the Immigration and Nationality Act is not a final decision.
How many EB-5 visas may be issued per year?
There are 10,000 EB-5 visas available to qualified foreigners each year. This includes visas for principal applicants and dependent family members (spouse, unmarried children under 21).
If I am already in the US on a work visa, is it necessary to return to my home country in order to obtain an EB-5 visa or permanent residence?
No. In order to obtain permanent residence in the US under the EB-5 program, you do not need to return to the country of your citizenship. You and the members of your family may apply to adjust status while in the United States. However, there is no concurrent filing of the EB-5 I-526 petition with an application to adjust status, i.e., it is necessary to have the EB-5 petition approved first, and only then can an application to adjust status be submitted.
What is the minimum investment required for the EB-5 program?
An investment of at least $1,800,000 is required. If the investment is made in a targeted employment area, the minimum requirement is $900,000.
Will my investment in a Regional Center project be returned if my petition is denied by USCIS?
It is important to understand the terms of the agreement to ensure a refund. Many Regional Center projects use specially-created escrow accounts in which your investment is frozen until your application is approved by the USCIS. Your money remains in that account and is not used for investment purposes unless and until your application is approved. In the event that your petition is denied, your investment will be returned to you. Other Regional Center projects use escrow accounts which permit the release of funds — or a portion — after a certain number of investors have had their petitions approved. In the event of an I-526 petition denial, they are obliged to return your funds. Some Regional Center projects use escrow accounts and release funds as the project requires. Other Regional Center projects do not use escrow accounts, but may be obliged to return the funds in the event of a refusal. Some escrow agreements may cover I-526 denials but not visa denials. Other agreements may require a refund within a certain period of time, or when a new investor is found, or “as soon as commercially practicable”. Certain agreements may only refund the $900,000, but not the administrative expenses.
How does the US investment program differ from 2nd passport programs?
2nd passport programs offered by countries such as St. Kitts enable an investor to “buy” a passport immediately, without going through an intermediate “green card” phase. Depending on the country, these passports usually allow for visa-free travel to dozens of countries. A US green card, while facilitating the receipt of a visa to many countries, does not allow for visa-free travel if the holder is a national of a country for whom visas are required. Another benefit of some of these 2nd passport programs is that if the country has an investment treaty with the US, the holder of the passport may qualify for an E-2 visa. This may be an attractive option for citizens of countries with long EB-5 waits; they can obtain an E-2 visa and work and live in the US while waiting for the EB-5 process to play out.
How does the US investment program differ from other countries’ immigrant investor programs?
The minimum investment of $900,000 to qualify for investor immigration in the United States remains comparable or more attractive than those of other countries. To qualify for the UK, it is necessary to invest £2 million. For Australia — AU$1.5 million. For Canada (Quebec) — C$1.2 million. In addition, other programs may require business experience or impose language requirements; the US does not have such requirements for immigrant investors.