It’s no secret that the visa backlog for Chinese immigrant investors is currently a lengthy one. With a 10-year waiting list for aspiring EB-5 visa recipients from China, Regional Centers and Developers are increasingly looking to India as the next big source of investment funds. Indian nationals may be particularly intrigued by this option, as wait times are up for EB-2 and EB-3 visas. Read on for details on the three main filing types for the EB-5 visa process, along with tips for Indian nationals looking to apply:

Understanding the I-526 Petition

A form intended for entrepreneurs who want to immigrate to the United States, the I-526 petition includes the form itself along with two sets of documents. It’s worth noting that securing approval of your I-526 petition does not result in citzenship rights for you or your family. All an approved form does is allow inmigrant investors to apply for their green cards.

The first step in obtaining I-526 petition approval is to gather the necessary documents. To complete your I-526, you will need both project documents and investor documents. The former includes economic reports, business plans, securities documents, and any other materials required to demonstrate how your project will spend its funding and create the requisite number of jobs. As for investor documents, be prepared to supply biographic details on yourself and your family. You’ll also need information demonstrating how you legally obtained the capital you’ll be using to fund your EB-5 project.

Upon completing the form and accumulating the necessary documents, immigrant investors should file form I-526 with U.S. Citizenship and Immigration Services. Currently, an investor can expect to wait around 18 months while the I-526 form is being processed.

Understanding Consular Processing

Consular processing, or adjustment of status, is the next step on the journey to securing an EB-5 visa.
If visas are available, investors can apply for green cards immediately upon receiving I-526 approval. Spouses and children under the age of 21 are also eligible for green cards. Unfortunately, many countries currently face backlogs that can delay them in obtaining conditional residency status.

Investors currently residing in countries outside the United States can file a DS-260 form for consular processing. The National Visa Center reviews the forms and then schedules interviews with investors at the U.S. consulate closest to their location. Upon completing a satisfactory interview, investors will receive immigrant visa stamps in their passports for themselves and their family members. Conditional resident status last for two years and begins on the day an investor enters the United States.

Individuals who have valid status in the United States can file Form I-485, also known as adjustment of status. At this time, immigrant investors can also file for work authorization (I-765) and advance parole (I-131). It’s important to note that investors may experience limited travel capacity until both work authorization and advance parole have been approved and investors have receivved their EAD/AP cards.

While processing times vary, immigrant entrepreneurs can expect to wait six months for I-485 and DS-260 processing. For advance parole and work authorization, 45 to 60 days is the norm. The wait time for the adjustment application is around six months.

Understanding the I-829 Petition

The last step in the EB-5 visa application process, the I-829 petition, must be completed within the 90 days before conditional resident status is due to expire. Filed with U.S. Citizenship and Immigration Services, this petition takes about two years to process at present. However, the act of filing this form on time extends the conditional period for 18 months. If your extension is coming to an end and your I-829 has yet to be approved, you can make an InfoPass appointment at your local USCIS office to obtain proof of continued conditional resident status.

To file the I-829 petition, immigrant investors need to provide information about themselves and their families. Typically, green cards are sufficient for demonstrating immigration status. However, you may also need to provide proof that no one has violated criminal or immigration law in a way that would prevent them from being a lawful permanent resident. Additionally, individuals may have to provide documentation that their projects created the requisite number of job openings.

Get Help With Your EB-5 Application

We help a wide range of immigrant investors, including Indian nationals, apply for EB-5 visas successfully. For more information on our services, call today or contact our experts online.

Created by the Immigration Act of 1990, the EB-5 visa program offers a path to lawful permanent residency for eligible foreign investors. As of 2017, U.S. Citizenship and Immigration Services confirmed a requirement known as redeployment in the online version of its policy manual. Read on for answers to some of the most frequently asked questions about EB-5 redeployment and what this means for immigrant investors:

1. What does the redeployment requirement confirmation mean for investors?

If you haven’t obtained a CLPR yet, you must adhere to certain requirements as an immigrant investor. With regard to job creation, if your EB-5 investment has yet to result in 10 new positions, you are required to redeploy funds to an active business venture with the potential to gain or lose money. The invested funds should be directed to the job creating entity (JCE). On the other hand, investors with CLPR status tend to have less stringent redeployment obligations. They can redeploy funds into an activity not described by the original business plan, provided that the plan was created in good faith.

2. At what point do investors need to comply with redeployment?

U.S. Citizenship and Immigration Services policy requires that EB-5 investors keep their funds in an at-risk state throughout the time they’re in CLPR status. This obligation means that any funds the JCE returns to the NCE must adhere to rules for redeployment. For example, in a case where the investor’s I-526 is still pending, the NCE is required to redeploy all investment funds to another at-risk business activity that’s engaged in commerce. Funds must be redeployed to the same JCE mentioned in the I-526 in the event that the investment has yet to create 10 jobs. Redeployment requirements are valid until the immigrant investor obtains a CLPR.

3. How long is an immigrant investor required to maintain the investment at risk?

According to the latest update from U.S. Citizenship and Immigration Services, the period for which an investor is required to redeploy funds spans two years from the date on which conditional permanent residence status was granted. At that point, investors are no longer required to keep investments in at-risk status or redeploy EB-5 funds. Withdrawing funds will not prevent immigrant investors from receiving I-829 approval.

Note that the I-829 adjudication process is used to determine whether or not an investor kept funds at risk during the required two years after obtaining CLPR status. However, individuals who still have funds invested during the adjudication process could enjoy more flexibility when it comes to demonstrating job creation than those who have withdrawn funds.

4. How does redeployment affect immigrants from countries with CLPR visa waiting lists who have already been approved for the I-526?

Redeployment requirements are based on when investors receive their CLPR visas. So, investors whose CLPR visas are delayed because of their countries’ specific waiting lists are still required to meet redeployment requirements during that time. Even if you’ve been approved for a 526, you must fulfill the redeployment requirement until you’ve had your CLPR for a period of two years. Investors who have yet to receive a CLPR and have failed to create 10 jobs must redeploy funds into an at-risk business activity engaged in commerce and divert funds to the JCE.

5. Which interviews will feature questions about redeployment?

Immigrant investors should be prepared to answer redeployment questions as part of the interview process. The goal is to determine EB-5 immigrant visa eligibility. Generally, the U.S. Citizenship and Immigration Services conducts the interviews for Adjustment of Status (“AOS”) and I-829 Removal of Conditions for individuals living within the United States. For immigrant investors living overseas, the U.S. Department of State performs consular processing interviews for visas.

6. What materials must be brought to the interview?n

It’s important to show up to your interview with all the necessary documents and financial statements. Commonly requested materials include Regional Counter financial summaries, NCE bank account information, loan records between the NCE and JCE, and redeployment documentation. If you’re not sure what documents to bring to your interview, don’t hesitate to speak to a knowledgable EB-5 attorney for more information.

The fact is that EB-5 rules and requirements can be complex, and not all attorneys have the background necessary to navigate the process. To find out more about EB-5 redeployment requirements, call today or contact our team online.

Created in 1990, the EB-5 Immigrant Investor Visa Program enables eligible immigrant investors to become permanent residents of the United States. By investing $1 million in an American business that will employ a minimum of 10 U.S. workers, these individuals may be able to obtain their green cards more quickly than other applicants. Unfortunately, obtaining your EB-5 visa can be easier said than done.
The chief of Immigrant Visa Control and Reporting, Charlie Oppenheim, spoke about visa waiting lines at an EB-5 Industry Conference in April 2018. When it comes to visa wait times, the fact is that applicants from different countries experience varying wait times. According to Oppenheim, applicants from China, Vietnam, India, South Korea, Taiwan, and Brazil are likely to anticipate serious backlogs by June 2019.

Read on for some of Oppenheim’s specific predictions by investor country of origin:

1. China

According to Oppenheim, applicants born in mainland China can anticipate waiting up to 15 years to receive a visa. This prediction is based on the assumption that just 2,000 Chinese nationals receive EB-5 visas in a given year and applies primarily to cases filed after April 2018; Oppenheim added that approved cases may enjoy shorter wait times. It’s worth noting that over 4,049 EB-5 visas have been issued to Mainland Chinese nationals to date in 2018; however, Oppenheim believes this number will soon be dropping. The USCIS Ombudsman drew a slightly more optimistic conclusion in 2017, suggesting that Chinese investors could expect to wait 10 years for an American visa.

2. Vietnam

In April, Oppenheim revealed that the Vietnam EB-5 final action date would reach January 1, 2016, by October 2018. This echoes the date given to applicants from China. Oppenheim went on to note that the government will allocate the full 7 percent of EB-5 visas to Vietnamese applicants by the spring of 2019.

3. India

Demand for EB-5 visas among Indian applicants is great, due in part to the serious backlogs for employment-based visas in other categories. According to Oppenheim, the government issued 375 EB-5 Indian national visas between the dates of October 2017 and June 2018. Experts predict that by the end of 2018, India will use 520 EB-5s compared to 174 in 2017.

4. South Korea

Another nation known for its high number of visa applications, South Korea received 423 EB-5s between October 2017 and June 2018. As a result, Oppenheim anticipates that a final action date similar to China’s may be established during the summer of 2019.

5. Conducting a Thorough Analysis

Before selecting an EB-5 project and embarking on your citizenship journey, it’s important to perform a compehensive evaluation of the project, taking all the essential elements into consideration. It’s particularly important that prospective investors do their due dilligence to ensure a project will meet the jobs requirement. This is the most important factor in determining EB-5 status. Additionally, investors and their representatives should evaluate available capital and consider whether its sufficient for the project with regard to both location and timeline.

5. Taiwan

Coming in under South Korea, Taiwan received 335 EB-5 visas between October 2017 and June 2018. Although Taiwanese nationals don’t currently have a final action date, Oppenheim advises that one may be established during the summer of 2019.

6. Brazil

As is the case for Taiwanese nationals, Brazilian applicants can anticipate seeing a final action date this coming summer. However, no specifics have been provided at this time.

It’s worth noting that estimated wait times are intended for planning purposes and may change without warning. Oppenheim states that estimates are based on “known facts” and don’t take into account possible events that may occur in the future. Further, he avoids hypothesizing based on legislative or administrative factors. In general, wait line estimates don’t account for considerations such as denial, dropout, death, and divorce, all of which can impact actual times.

Additionally, Oppenheim reveals that predictions on wait times can become self-fulfilling prophesies. In other words, commenting on expected immigration wait times can increase the odds of those times occurring.

For example, in 2015 Oppenheim predicted a final action date for Chinese nationals, which soon become a reality. The same thing happened with Vietnam in 2018. To that end, Oppenheim advises individuals seeking EB-5 visas to be aware that final action dates may occur earlier than expected. Immigration attorneys should take care to stay up to date on the latest news and guidelines so they can provide clients with the most accurate information.

Ready to learn more about EB-5 visa wait times and backlogs? We offer a plethora of information on our site, along with access to industry experts who can help you achieve your goals. Call today for details on our services, or contact our team online.

There are various elements to consider when choosing an EB-5 project. Along with personal considerations like risk tolerance, desired budget, and preferred business locale, prospective investors need to consider whether or not a project will meet the stringent EB-5 requirements. For example, undertaking a project that doesn’t lead to the creation of the requisite 10 jobs will most likely result in your EB-5 visa being denied. Similarly, neglecting to do appropriate due dilligence on a construction project could lead to a loss of funds and have a negative effect on your overall citizenship goals. If you want to increase your odds of EB-5 approval, take care to avoid shortcuts, and do the work. The goal is to ensure you’re making the right investment from the start.

1. Meeting Job Creation Requirements

To meet the EB-5 visa requirements, a project must result in the creation of at least 10 full-time jobs. Investors have two years to fulfill the job creation requirement, and those who fail to do so will likely not obtain their visas. It’s important to note that direct jobs will not be counted in cases when projects end before the two-year mark. However, indirect jobs created by the project are considered when evaluating an investor for EB-5 status.

2. Adhering to the Two-Year Timeline

Because of the strict timeline associated with the EB-5 visa process, prospective investors need to consider projects carefully to ensure they can complete the jobs requirement. Investors have only two years to create 10 jobs, and those who are unable to meet this requirement on schedule won’t obtain visas. With that in mind, investors should consider whether the budget for a project will affect its timeline. If funds are limited or insufficient, the project might hit delays that throw off scheduling and ultimately result in the need for more capital. The end result could be that the project doesn’t make it the requisite two years or fails to result in the creation of 10 jobs.

3. Assessing Budgetary Concerns

Along with evaluating the overall project timeline, investors should consider general budgetary factors. Strive to find a third-party evaluator who can assess the construction project using local economic figures and statistics and ensure it meets all EB-5 requirements. Referring to national data alone could result in your projected jobs output being inaccurate.

Taking the local economy into account is also important for determining funding needs. After all, investors considering a construction project in San Francisco will almost certainly need more capital to achieve their goals on time than those looking at projects in Atlanta. In this way, location can have a significant effect on your ability to meet the jobs requirement. An investor working in a large or expensive city might have a harder time adding jobs than one starting a business in a smaller area with a lower salary and cost of living.

4. Understanding USCIS Accepted Expenditures

Before choosing an EB-5 construction project, investors need to consider United States Citizenship and Immigration Services accepted expenditures. While the USCIS tends to accept some expenditures without question, others may raise red flags and affect the outcome of your evaluation. Having a thorough understanding of the USCIS rules and regulations is the best way to minimize risk and protect your EB-5 visa status.

For example, hard construction costs tend to be accepted with less hesitation. In most cases, investors can safely add costs associated with labor, shoring, materials, and demolition to their evaluations. On the other hand, soft costs are more problematic from a reporting perspective, though many can still be added to an evaluation without risk. Soft costs that are considered “safe” include fees associated with engineers, architects, insurance professionals, and attorneys whose services aren’t being used for the EB-5 proecess.

Some expenses are not permitted. When calculating expenditures for your EB-5, avoid including permits, local fees, and property tax costs.

5. Conducting a Thorough Analysis

Before selecting an EB-5 project and embarking on your citizenship journey, it’s important to perform a compehensive evaluation of the project, taking all the essential elements into consideration. It’s particularly important that prospective investors do their due dilligence to ensure a project will meet the jobs requirement. This is the most important factor in determining EB-5 status. Additionally, investors and their representatives should evaluate available capital and consider whether its sufficient for the project with regard to both location and timeline.

Secure the Help You Need on Your EB-5 Journey

Of course, even the most thorough evaluation can’t ensure that your EB-5 construction project will run smoothly. Problems can crop up when you least expect it, throwing a wrench into your timeline and goals. Like any investment, an EB-5 constructino project is a risk, but conducting a thorough investigation at the start can go a long way toward keeping your money safe and protecting your citizenship goals.

Ready to get started on the journey to obtaining your EB-5 visa? Our knowledable team has the experience and expertise to support you every step of the way. Call today or contact us online for help with your construction project.

In 1990, Congress was looking for ways to boost job creation in the United States while pumping money into the economy. The result was the EB-5 immigrant investor visa category. Designed to lure wealthy foreign investors, the visa offered a path to lawful permanent residency for entrepreneurs and their families. Each year, the Immigration and Nationality Act provides EB-5 investors with approximately 10,000 visas, 3,000 of which go to Regional Center Program investors who devote resources to targeted employment areas (TEA).

What Is the Regional Center Program?

Created in 1992, the Regional Center Program, also known as the Immigrant Investor Pilot Program, allows eligible foreign entrepreneurs to invest in Regional Centers instead of commercial enterprises. One of the benefits of investing in TEA Regional Centers is that the investment requirement is lower: $500,000 instead of $1 million. The reduced rate stems from the fact that these areas tend to be in greater need of employment opportunities. Not only can Regional Centers combine resources to achieve larger goals, but they also have different job creation requirements, making it easier for investors to meet EB-5 standards.

EB-5 and Regional Center Program Eligibility Requirements

To qualify for the traditional EB-5 Program, every foreign investor must provide financial support to a business that directly creates or maintains a minimum of 10 full-time jobs. One of the benefits of the Regional Center Program is that investors can meet the requirement by creating 10 direct, indirect, or induced jobs. It’s worth noting that the amount of capital investors can raise is limited by the number of jobs. For example, a project manager for a TEA project expected to yield 30 jobs can raise a maximum of $1.5 million in EB-5 capital from three foreign investors.

Choosing Appropriate Investments

Not all investments qualify foreign entrepreneurs for entry into the EB-5 Program. In order to be considered for this type of immigrant visa, individuals must invest a sum of $1 million (or $500,00 for a Regional Center project). Capital may be in the form of cash, equipment, property, inventory, or loans. Note that administrate, attorney, and management fees do not count toward the investment requirement. Additoinally, foreign investors should be able to demonstrate that they are the legal owner of all relevant capital.

To qualify for a visa, individuals also have to show that they already placed funds in an “at-risk” investment or that they are in the process of doing so. The “at-risk” distinction indicates that there is no guaranteed return on investment. Further, investors should be able to demonstrate that funds have been made available to the business venture in question.

Important Forms for Immigrant Investors

Aspiring immigrant investors need to fill out a number of forms before securing an EB-5 visa. These include:

I-526 Petition by Alien Entrepreneur – This document is used as evidence that an eligible investor has made or is currently in the process of making an investment in a suitable project. To meet the requiements, individuals must show that they intend to manage the investment’s daily activities or serve as a policy advisor. Additionally, investors must provide a buisiness plan demonstrating that their project will result in 10 jobs.

I-485 Application – This form functions as an application to register permanent residence or adjust an applicant’s status. To become a conditional permanent resident of the United States, individuals must provide the following: birth certificate, marriage certificate, passport, non-immigrant visa, vaccination records, and medical examination documents. Additionally, aspiring investors should be prepared to supply a form I-797 C, an approved I-526 petition, fingerprints, current photos, signatures, and any criminal history documents.

I-829 Petition – This form removes conditions on investors and allows them to become full, lawful permanent residents of the United States. Requirements to file include a conditional green card, evidence of investment, evidence of job creation, photos, and fingerprints.

Questions to Consider When Selecting an Investment Project

Prospective applicants should take care to choose a project that meets their needs and goals while adhering to the program requirements. Here are some questions to ask yourself before investing in a commerical enterprise or Regional Center:

• Do I want to manage the investment on my own or leave that up to the Regional Center?
• How open am I to taking risks in this investment?
• How much do I know about the industry in question?
• Have I conducted due dilligence on the projects I’m considering?

When embarking on the EB-5 journey, it’s crucial to find a knowledgeable attorney who specializes in immigration and business law. Ready to get started with the EB-5 investment process? Call today or send us a message!

It’s no secret that the route to becoming a legal U.S. immigrant is long and filled with roadblocks. In an effort to gain a leg up, some individuals enter the EB-5 direct investment program as a way of achieving favorable immigration status in the United States. According to a report by the Washington Post, since 1990 foreign investors from China, the Middle East, and other regions have created thousands of jobs through the EB-5 program. Moreover, the United States has awarded 29,000 visas to these enterprising individuals.

As an EB-5 direct investor, you will face additional requirements that U.S. citizens and EB-5 Regional Center investors don’t have to deal with. Because the EB-5 direct investment program focuses primarily on job growth, visas will be denied to those individuals who don’t create at least 10 jobs through their EB-5 direct investments. With that in mind, it’s crucial for EB-5 investors to know whom they can and can’t hire to satisfy the job creation requirement.

Hiring Requirements for EB-5 Investors

Unfortunately, it can take up to two years to be accepted into the EB-5 program. Having a thorough understanding of all the legal and documentary hurdles investors need to navigate is the best way to increase one’s odds of being accepted. In the eyes of the EB-5 program, not all jobs are created equal—and neither are all employees. While EB-5 direct investors are obliged to create at least 10 jobs in service of the U.S. economy, the immigration status of an employee affects whether the job counts toward the requirement.

As an EB-5 job creator, you can feel confident hiring employees who are U.S. citizens and permanent residents. Both categories count in terms of the job creation requirement. Additionally, investors are free to hire aliens who are residing in the United States under deportation suspension, legal asylees, and refugees.

On the other hand, certain categories of employees will not count toward the job creation requirement. These workers include non-immigrant aliens and those individuals holding L visas, M visas, and O visas. Additionally, individuals with expired green cards aren’t counted toward the job growth requirement. Investors should note that they can’t count themselves or their family members when filling the job creation obligation.

How Do You Know if an Employee Counts Toward Your Job Requirement?

If you do want to hire employees who aren’t citizens, it’s important to assess their immigration status early on. As an EB-5 job creator, you’re technically allowed to hire any employee you desire. However, you should be aware of the restrictions that apply to the job creation requirement. With that in mind, certain investors may opt to limit their hiring to U.S. citizens or permanent residents. Doing this can protect you from hiring a worker with an L or M visa status.

If you do want to hire employees who aren’t citizens, it’s important to assess their immigration statuses early on. Unfortunately, employers are legally prohibited from asking applicants for certain immigration information. Further, the main document used to determine an employee’s work eligibility, Form I-9, neglects to distinguish between different immigration statuses. Workers have successfully sued their employers for requiring more immigration documentation than was legally necessary.

Rules for Requesting Immigration Documents

While EB-5 direct investors can’t directly ask prospective employees about their immigration statuses, the Justice Department has ruled that they can request further documentation. However, the caveat is that employers must make the same request of all their employees, not just those claiming a certain immigration status. Failing to adhere to the Justice Department’s guidelines could result in legal action being taken against you or your business.

Reach Out for Additional Support

The job creation requirements for EB-5 direct investment can be complex, and new investors often struggle to meet all their obligations. Because failing to abide by these requirements can result in a visa application being denied, many investors opt to consult with a lawyer before embarking on this journey. Not only can a knowledgeable EB-5 attorney help ensure your immigration visa is approved, but they can also prevent you from losing liquidity due to legal fees.

In the beginning of the EB-5 Immigrant Investor Program, all projects involved direct investments because the regional center option did not appear until several years later. The arrival of the regional center option saw a dramatic move away from direct investments and toward this new investment vehicle. Many EB-5 advisors believe foreign nationals are overlooking the many options and benefits that accrue from the direct investment route.

Investors regularly overlook the fact that regional centers require regular reauthorization to remain part of the EB-5 program, whereas the direct investment option is a permanent feature of this valuable program. Even though the regional center option has been successfully renewed in the past and near-future prospects show no indication of this changing, regional centers remain an impermanent opportunity that is subject to change or elimination.

The Difference Between Passive and Active Investments

The main difference between regional centers and direct investments is the amount of control an investor has in each type. With a regional center, the foreign investors are limited partners who supply the cash but are not involved in the daily operations of the project. While this suits many EB-5 investors and is a popular option, it also means investors have little input beyond the opportunity to vote with other limited partners on certain issues, making them passive investors.

In comparison, direct investors enjoy full control over their projects. While they can relinquish or pass control to other employees or officers of the commercial enterprise, they still can control major decisions that affect the future of the business. Obviously, this form of investment calls for greater involvement on the part of the investor, but some people thrive in such hands-on efforts, making them perfect active investors. Even for investors who are reluctant to commit to such intense involvement, there are direct investment choices that function as passive investments, meaning fewer operating decisions, but still leave full control in the hands of the EB-5 investor.

Franchises: An Ideal Blend of Passive and Active Investments

The franchise industry is ideally suited for EB-5 direct investments. Franchise investments are available in many industries, and the benefits of investing in a franchise include fuller disclosure requirements, public recognition and popularity, and an existing customer base that gives a new investor a running start on their EB-5 project. Another valuable aspect of franchises is their proven history and the existing regulations and oversight by both federal and state authorities. Compared to regional centers, franchises are subject to more rigorous and regular governmental review.

On top of governmental supervision, the franchises themselves usually perform their own audits and updates for their licensed franchise owners, giving each individual investor the opportunity to compare their performance against other franchisees and the general industry. While franchise owners are subject to the internal rules and regulations of the franchise license, these investors retain greater control over a franchise than they would by passively investing in a regional center.

Of course, no investment is perfect and each type of investment, passive or active, has its own benefits and drawbacks. The informed investor will work with qualified and experienced EB-5 consultants and advisors to evaluate as many realistic EB-5 investment options as possible. Only by such thorough and extensive research can the foreign investor reach an educated conclusion that will result in the best possible results for their preferred EB-5 investment.

Brazil, the largest and economically strongest South American nation, has lately become a key participant in the EB-5 Immigrant Investor Program. This is partially due to a recent slowing of its economy, which has been expanding since the 1990s. Brazilian citizens are now investigating investment opportunities beyond their country’s borders and developing a strong interest in exploring new cultures and lifestyles. Of course, American ideals and attractions have caused many Brazilians to look in that direction for a new life, and they have discovered the allure of the EB-5 program as a point of entry.

The Increasing Brazilian Interest in the EB-5 Program

The numbers are revealing: in fiscal year 2017, Brazil ranked third for nations participating in the EB-5 Program, securing nearly 3% (a total of 282) of the available EB-5 visas. By far, citizens from mainland China still topped the list, snagging 75% of the available visas. Vietnam came in second, with almost 5% of the visas.

This represents a noticeable jump from fifth place from the year before, pushing this South American nation past Taiwan and South Korea, nations in a holding pattern as to the number of visas issued each year. The number of visas issued to Brazilian investors has grown by 100 per year. Now that both mainland China and Vietnam are facing backlogs, the possibility of sustaining or increasing that pace seems highly probable. Since Brazil is still new to the EB-5 game, they are nowhere near reaching a retrogression stage like China and Vietnam, where waiting lists can extend for years. Developers are actively wooing Brazilian investors for their upcoming projects because of this surge in interest and participation.

Moneyed Interests in Brazil

Thanks to Brazil’s impressive economic growth over the past couple of decades, many new Brazilian millionaires appeared, with quite a few of them actively pursuing their own American dream. A two-day EB-5 conference held in São Paulo in April 2018 drew 300 attendees eager to learn more about the program.

One potential obstacle that needs addressing is that Brazilians currently enjoy one of the lowest tax rates in the world. By becoming green card holders, Brazilians would face taxation on all income they receive, regardless of where it originated. This can be considered an additional “cost” of obtaining permanent U.S. residency. Advisors should be able to discuss this point knowledgeably and explain the potential financial impact for Brazilian investors. Brazilian investors with an entrepreneurial mindset may see this additional tax burden as simply a minor obstacle that can be easily overcome thanks to the profitable business opportunities that abound throughout the U.S.

The Brazil–Florida Connection

For more than 20 years, Brazil has enjoyed a close and profitable trading partnership with the state of Florida. The main products imported from Brazil are related to technology and the aircraft industry, with refurbished aircraft parts being the top import. It seems that Brazilians are also comfortable investing in Florida, perhaps due to this historic trade relationship. To date, Brazilians have preferred EB-5 investments situated in Florida, particularly those operating in major cities like Miami, Orlando, and Jacksonville.

Because of the unique tax challenge they face and increasing attention from qualified persons, interested Brazilians are strongly encouraged to consult with qualified and experienced advisors and legal experts to grasp the larger and more complex picture of the EB-5 Immigrant Investor Program and the exciting opportunity it offers. For many investors, the opportunity to work, live, travel freely, and educate their children in America makes the effort more than worth their while.

There may be a time during an EB-5 investment that redeployment of the original funds is required. If fund redeployment occurs, investors should understand why it happened and how it should be managed to stay within the EB-5 guidelines as outlined by the USCIS. Because this process is complicated and operates differently depending upon the situation of the foreign investor, gaining a better understanding of redeployment is advised for existing EB-5 investors and for those investigating the value of an EB-5 investment for their own benefit.

Why Are Funds Redeployed?

Many EB-5 investments employ a similar process for managing the money received: funds are first placed into a new commercial enterprise (NCE), which in turn loans the money to a job creating entity (JCE). It is not uncommon for these funds to be returned prior to the due date if the JCE accomplishes its job creation goal earlier than anticipated. Another situation that often occurs is that the due date of the loan is reached before finalizing the conditional legal permanent resident (CLPR) status of the investor.

Because the USCIS requires EB-5 funds to remain at risk during the period the foreign national holds CLPR status, the NCE will redeploy the funds to remain in compliance with the USCIS. Since investors may be in different phases of their CLPR status, redeployment requirements will vary depending upon each situation.

Understanding Redeployment Requirements for EB-5 Investors

The major requirement for any funds that are redeployed is that those funds remain at risk, just as they were subject to normal risks and rewards in the original investment. Another element that will determine the proper deployment procedures is based upon the CLPR status of the foreign investor.
For investors who have neither received their CLPR status nor have met their requirement of creating 10 new jobs through their EB-5 investment, funds must be redeployed to a qualified commercial entity that is actively engaged in commerce, with standard risks and rewards common to “at risk” investments. In addition, the redeployed funds must pass through to the JCE that was named in the original I-526 petition. Finally, the application of that money must remain consistent with the I-526 business plan.

Investors who have not received their CLPR status but whose EB-5 investment has already created the required 10 new jobs can redeploy their funds to another commercial enterprise that is participating in a business that is in accord with the I-526 business plan. As before, the funds must be subject to the same degree of risk as the original investment, but since the job creation requirements were met, they do not have to be channeled to the same JCE as before.

Investors who have already received their CLPR status and met their job creation requirement will find redeployment to be an easier process with greater leniency in their choices. As in the previous two instances, the funds must still be redeployed to an enterprise currently in operation and exposed to normal market risks leading to gains or losses. The major difference in this situation is that funds can be directed to a new business activity not considered or proposed in the original I-526 petition.
For any of the above circumstances, the USCIS requires that redeployment occur “within a commercially reasonable period of time.” Even though the USCIS has not defined what period they deem to be reasonable, experts generally agree that three months is an acceptable timeframe in which to accomplish redeployment.

Redeploying Funds for Investors with Pending I-526 Petitions

One situation commonly faced by immigrant investors is the case whereby the JCE is returning funds to the NCE, yet the investor still has an I-526 petition pending with the USCIS. In this case, the NCE is required to redeploy all the investor’s money within a “commercially reasonable period of time” into another business activity and under the same “at risk” conditions as before. If the funds have not met the requirement of creating 10 jobs , the money must be directed to the JCE designated in the I-526 petition.

The funds must be used in the same way as originally intended in the I-526 petition. Once the investor is granted CLPR status, the USCIS allows the funds to be redeployed into other business activities not originally detailed in the I-526 petition, but the “at risk” requirements remain the same.

Waiting Lists and CLPR Statuses

Another issue some EB-5 investors face that triggers the need for redeployment is if their country is on a waiting list for their CLPR visa. In such a situation, redeployment is almost certain, as investment funds must keep their “at risk” status in place until two years after investors receive their CLPR status. Only through redeploying funds can investors remain eligible during this waiting period.

If investors still need to meet their job creation requirement, funds will be redeployed to the same JCE named in the I-526 petition. If the job creation requirement has been fulfilled, funds do not need to be redeployed to the original JCE. In either case, all other terms of the I-526 petition must be followed to remain in compliance with USCIS regulations.

Maintaining “At Risk” Status

According to the USCIS Policy Manual, investors are required to keep funds at risk until two years have passed from the date the CLPR was issued. Technically, once this stage is passed, funds may be withdrawn, but experts recommend caution rather than a hasty exit. As there are many forms and petitions to be processed and approved, early removal of investment funds could prove problematic.

Investors are better advised to wait until their I-829 petition has completed the adjudication process. It is during this final and crucial procedure that the USCIS gives the all clear signal. There have been instances where the agency questioned the job creation requirements and demanded further documentation; knowing that funds are still accessible gives the NCE flexibility in proving their job creation requirements or using that money to make up the shortfall. Investors who have already withdrawn their funds may find their I-829 approval delayed until funds are returned to the NCE and requirements met to the satisfaction of the USCIS.

Redeployment and Agency Interviews

It is imperative that immigrant investors be knowledgeable and conversant concerning their EB-5 investments; this includes being prepared to provide thorough details of any redeployment of funds. Both the USCIS and Department of State (DOS) will ask questions pertaining to the EB-5 Visa, with special focus on the use of investment funds to ensure the investor is complying with all regulations and maintaining eligibility. The DOS operates outside the US and oversees consular processing interviews that initiate the visa application process, while the USCIS works within the US and is engaged in managing all stages of the EB-5 immigration process, with emphasis on and close attention paid to the investment component of the procedure.

Much of the information the investor needs to provide can be obtained from their legal advisors and regional center operators in the form of commercial, financial, and legal documents. Specific items on their checklist should include

• Bank records supplied from the NCE
• Financial summaries generated from the regional center
• Loan records tracking the transfer of funds between the NCE and JCE
• If funds were redeployed, full documentation and tracking of funds from the NCE to approved business activities

Even the most experienced investors have learned that having adequate counsel conversant with all matters pertaining to EB-5 immigration is of the utmost value. Since a lot of effort and money goes into the EB-5 process, having experts on their side providing advice and information to bring about the desired conclusion swiftly and smoothly will make that result more likely.