The Immigrant Investor Program, more commonly known as EB-5, was created by the United States Congress’ Immigration Act of 1990. EB5 visas allow foreign entrepreneurs and their dependents to live in the United States in order to manage large-scale investments.
EB-5 Final Rule Now Applicable: Minimum Required Investment
Raised to $900k Effective November 21, 2019.
When Did the New Regulation Take Effect?
The Department of Homeland Security (DHS) published the EB-5 Investor Program Modernization regulations on July 24, 2019, with an effective date of November 21, 2019. The rule also provides for inflation-based additional raises to the minimum investment amounts beginning on October 1, 2025. These rules went into effect on November 21, 2019
What are minimum investment amounts provided in the New Regulation:
The regulation raises the threshold from $500,000 to $900,000 for targeted employment areas (TEAs) and up to $1.8 million for all other investments.
What other Significant Changes are Contained in the New Regulation:
The regulation significantly restricts the designation of TEAs which will significantly limit the number of viable Regional Center projects (it would appear the vast majority of current projects may well not qualify under the new rule, though some projects are offering compliant investments). The new rule, generally, favors TEAs located in rural areas and removes the ability of a State to designate what they consider to be low employment areas. The result would appear to be a significant limitation (after 11/21/19) of the projects that qualify for the lower TEA threshold investment amount.
What if I filed an EB-5 prior to Nov. 21? Do the new Regulations apply to my case?
USCIS should adjudicate your case under the older EB-5 regulations and rules. Only cases filed after November 21, 2019 should be reviewed under the new EB-5 regulations. The rush of new filings in the months leading up to November 21 will likely significantly extend the existing wait times so that filing after Nov. 21 will almost certainly result in a wait time of three years or well longer (depending upon the nationality of the investor).
What action should an interested EB-5 investor take?
Speak to an Experienced EB-5 Attorney as soon as possible. Generally, it does take several weeks or longer to prepare a viable application so any investor considering EB-5 to obtain a green card should act immediately. To schedule a confidential initial consultation at either our Orlando, Miami or Tampa immigration offices call us at 407-478-1111 or 813-444-1114 today. You can also contact our firm online to schedule a consultation via phone or WhatsApp.
Below is more information regarding the EB-5 Visa as it currently exists but please note that the changes due to take effect soon will significantly alter the landscape in the near future.
What Are the Advantages of Pursuing an EB5 Visa In Comparison to Other Immigration Options?
There are a multitude of advantages to the obtainment of an EB-5 visa relative to other potential green card options. Notably, obtainment of an EB-5 Visa does not require a labor certification process in order to attempt to demonstrate a shortage of U.S. workers to perform the potential job. Moreover, the EB-5 Visa does not require the applicant to maintain an existing home country business. The EB-5 Visa further does not require extraordinary ability in business. EB-5 visas are initially granted to investors, their spouses, and their dependents on a two-year conditional basis.
Another benefit of seeking conditional residence in the United States through the EB-5 program is the fact that visa quotas on the basis of country are not applicable, such as in the case of a diversity visa. Furthermore, unlike visas for immediate relatives of U.S. citizens, the EB-5 does not require an intending immigrant to already have family members present in the United States. Thus, the EB-5 visa provides a significant amount of flexibility for intending immigrants.
Furthermore, and most importantly, the EB5 visa provides a direct pathway to U.S. citizenship. Unlike temporary worker visas and E-2 Treaty Investors visas that do not provide a direct pathway to citizenship, EB5 visa holders do not have to resort to creative means to establish a pathway to citizenship. Rather the pathway to citizenship is well-documented and fully within the intent and scope of the program. Thus, while the EB5 program may even return a modest on the immigrant investor’s investment, the real dividend is a well-established pathway to a green card and then U.S. citizenship for the investor and his or her family members.
What Requirements Must an EB5 Immigrant Investor Satisfy?
An investor applying for an EB5 visa must begin by selecting a regional program and satisfying the fees and investment requirements. These procedures vary among programs, as do the mechanisms for recovering an investment if the application is denied. With the appropriate regional program selected and payments satisfied, the next step is the submission of a Form I-526 to the appropriate regional center of U.S. Citizen and Immigration Services, which usually takes between nine and 15 months to grant approval.
After winning this approval, the foreign investor must meet with a representative of the U.S. government at the embassy in the investor’s home country for reviews of the applicant’s medical, criminal, and immigration history. Once the initial EB5 visa is granted on a two-year conditional basis, the immigrant investor must enter the United States within 180 days of issuance.
What Must an EB5 Petition Demonstrate?
After new immigrant entrepreneurs begin managing their investments from within the United States, the Colombo & Hurd, PL network of offices and attorneys can help investors anywhere in the country prepare their petitions for permanent resident status. Petitions submitted to the U.S. federal government will need to include extensive evidence that the immigrant investor is complying with the terms of the EB5 visa.
The EB5 petition must set forth that:
A new commercial enterprise has been established,
the proper amount of capital has been placed at risk,
the capital invested was lawfully gained,
the investment has created is expected to create at least ten full-time jobs
the investor intends to stay in the United States, and
the investor will be engaged in the management of the enterprise.
The requirement that the investor proves the capital utilized in the investment was from a lawful source is particularly important and frequently a source of significant frustration for EB5 applicants. The source of the funds must be thoroughly documented such that USCIS is satisfied that the funds are not the product of illegal activity. Individuals that cannot demonstrate the lawful source of their funds are unlikely to be approved for the EB5 program and secure the immigration benefit.
What Process Should an EB5 Filer Expect to Face?
The EB-5 visa application process is a complex and technical process where certain events must be timed to correspond with or proceed certain legal filings. However, in general, the process begins with the filing of an I-526, Petition by Alien Entrepreneur. Presently (January 2020), USCIS is reporting that I-526 is taking approximately 32 to 49 months to process, though this can vary significantly depending on the project and/or regional center through which the investment is made.
After approval of the I-526, the investor can either adjust status through the filing of the I-485 Application to Register Permanent Residence if lawfully present in the U.S. or file the DS-230/DS-260 Application for Immigrant Visa and Alien Registration should the investor wish to process from abroad.
Once conditional entry into the United States is secured, the investment must remain and job creation must occur. Failure to follow the terms of the plan set forth by the immigrant can jeopardize his or her ability to later remove the conditions placed on his or her green card.
After faithfully executing the plan set forth in the earlier immigration filing, timing becomes extremely important. No less than 90 days before the two-year anniversary of the EB-5 applicant’s green card status, he or she is required to file Form I-829 Petition by Entrepreneur to Remove Conditions. The failure to make a timely filing of this form significantly complicates the process and may even result in the immigrant becoming ineligible to remove conditions on his or her green card.
Targeted Employment Areas Can Provide the Benefits of an EB5 Visa with a Reduced Investment
Many individuals who would like to come to the United States to establish a new life prefer to invest $900,000.00 rather than the “standard” $1.8 million investment required. While the reasons for this difficulty can vary, one of the leading causes is due to strict capital controls being in place in the intending immigrant’s home nation. China, Egypt, Argentina, Iceland, Russia, and India are but a few of the nations that have recently enacted at least some level of capital controls or other measures to restrict the flow of capital out of the country and across national borders.
Thus, for many EB-5 visa seekers, engaging in a project that is located within a Targeted Employment Area (TEA) is one method of reducing the impact of capital controls. Projects located in TEAs require a $900,000 investment, compared to $1.8 million, however, the other requirements regarding job creation, lawful-source income, and other standards remain.
Under the new, November 2019 Regulations, USCIS will now determine the validity of a TEA under stricter rules for geographic area, likely resulting in fewer TEA projects or more projects in truly rural areas. Now more than ever, an experienced EB-5 lawyer can help you understand these definitions, the benefits of selecting a project located in a TEA, and other information relating to your potential EB-5 application.
Time Is of the Essence
In today’s global economic climate and due to political conditions in the United States, it is now more important than ever to take action regarding an EB-5 visa. Globally, concerns over the economic slowdown in China coupled with concerns regarding the environment and education available in the country has resulted in an explosion of demand for EB-5 visas. This demand greatly outstrips the supply of EB-5 visas authorized annually. As such a waiting list for EB-5 visas exists and is growing. If parents wish to confer the immigration benefits of an EB-5 visa to their children, there is a real concern that during the wait and multi-year process that he or she may age out and become ineligible for derivative EB-5 benefits.
In the United States, the U.S. Congress has placed increasing scrutiny on the program due to concerns about its benefits to rural areas, that the investment amounts may be too low, and an array of other concerns. A number of reform bills have been introduced. While the exact nature of the reform is still unknown, it is highly likely that any new program will be under less favorable terms. While a decision has not been made regarding the retroactivity of any reform amendments, interested parties would be prudent to file before the reform is enacted to preserve a possibility of being “grandfathered” under the current rules
Our EB5 Visa Lawyers Can Help
Our law firm maintains a 100% approval rate in representing investors obtain the EB5 Investors Visas. However, all EB5 visa matters are independent of past successes and subject to an array of factors and economic conditions that may be outside of the control of any party. Our firm has represented clients from throughout the world including investors and their families from Brazil, Argentina, Colombia, Mexico, Venezuela, Egypt, India, Kuwait, Dubai, China, Iran the United Kingdom and Canada with the EB5 process. We can provide sound guidance regarding the EB5 process and information to help avoid foreseeable legal issues.
If you are interested in learning more about EB5 visas, please contact our experienced EB5 investor visa lawyers at Colombo & Hurd today. To schedule a confidential initial consultation at either our Orlando, Miami or Tampa immigration offices call us at 407-478-1111 or 813-444-1114 today. You can also contact our firm online to schedule a consultation via phone, Whatsapp or Skype.
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