Private Placement Memorandums (PPMs) are legal documents issued by entities seeking funding. They provide these documents to potential investors so that they can make informed investment decisions. Unlike a business plan, the PPM is a descriptive document that details a company’s overall business structure, the nature of the investment offering, relevant financial data, and the investment’s associated risks.

PPMs are commonly used to facilitate funding for startup businesses and real estate projects, including any EB-5 new commercial enterprise (NCE). For such investment ventures, the U.S. security laws do not enforce the full securities registration process, to enable project developers to raise investment capital at a lower rate. While the relaxed securities regulations may speed up the fundraising process for developers, they expose investors to higher risk, which requires the issuance of PPMs.

In this article, we will outline the purpose and components of typical PPM documents in the EB-5 context.

What Is the Purpose of a PPM in EB-5 Investments?

A private placement memorandum is of some value to all the stakeholders in an EB-5 investment. As we highlighted earlier, it provides the investor with all the information they need to decide whether a proposed investment meets their financial objectives.

The PPM discloses any potential risks associated with the investments. It also outlines how investments comply with U.S. immigration and securities laws, ensuring investors of their legality.

As for the project developer or regional center, who may also be the issuers in this context, a detailed PPM will boost investors’ confidence and speed up the fundraising process. Furthermore, the PPM shields EB-5 project developers from liability for non-disclosure since the document contains proof that the issuers disclosed all relevant information to investors.

EB-5 professionals like lawyers and financial advisors also use the PPM because it clearly explains the unique chances and risks of each project. The detailed information helps them do their jobs better, from conducting market research to ensuring due diligence at every stage of the project.

What Are the Components of a Comprehensive PPM for EB-5 Investments?

A comprehensive EB-5 PPM must have certain components and disclose specific information about the EB-5 investment. These include the following:

Executive Summary

The executive summary features a short overview of the PPM, providing investors with a quick and clear understanding of the document’s content. It should include a summary of the investment project, the type of investment, and its structure. The executive summary could also include any important legal disclaimers, such as the non-guarantee of immigration benefits and investment returns.

Business Plan

The business plan section of the PPM provides more in-depth information on the nature, purpose, location, and direction of the investment project. It outlines the investment history, objectives, and project development timeline. EB-5 PPMs should specifically include information on how the investment can fulfill the U.S. Citizenship and Immigration Services (USCIS) job creation criteria and minimum investment amounts.

The business plan should also indicate how the business will function daily and the management team responsible for ensuring its smooth running.

Financial Information

A comprehensive PPM should feature detailed accounts of the use of investment funds.

This includes summarized financial statements that disclose accurate information on revenue, expenditures, profits, and business cash flow projections.

This section should also include information on the business’s capital structure, such as the total investment required for the EB-5 project and the amount already acquired.

Risk Factors of the Investment

Investors and other stakeholders in the EB-5 investment rely on the PPM for risk assessment purposes. This is why a PPM must detail all the potential risks of the investment, from business risks, such as potential competition, to financial risks and immigration risks.

Terms of the Investment

This section informs investors of the basic conditions for participating in an EB-5 project. It should also cover the terms of the investment, such as the minimum investment amount required from each investor. The terms section of the PPM should also inform investors of the mode of investment, whether equity-based or loan-based, as well as the issuer’s preferred subscription procedures.

In addition, this part of the PPM usually features the rights and obligations of the issuers and investors to one another and a viable exit strategy. Conditions regarding repayment, redeployment, and I-526E approval refund guaranty may also be included in the PPM.

Legal Compliance

The project developers must outline how they intend to ensure the legality of the EB-5 investment. The PPM must disclose that the EB-5 project is in compliance with the regulations of USCIS and the U.S. Securities and Exchange Commission (SEC).

Do EB-5 Investors Need a PPM?

While USCIS does not mandate PPMs from EB-5 investors, most of the components of the legal document are required. For instance, USCIS requires a business plan, along with evidence that the investment meets the minimum amount and will create the required number of jobs. This is why having a PPM is highly recommended; it allows investors to organize all the required paperwork into one comprehensive document.

In summary, showing a PPM to USCIS facilitates the review process, increasing investors’ chances of having a successful EB-5 process. It also ensures that investors comply with U.S. securities laws as enforced by the SEC, which are just as important as the U.S. immigration laws.

Seek Guidance from Industry Experts

PPMs are primarily issued to investors. However, investors alone usually cannot analyze and apply the information without consulting EB-5 professionals. After receiving your PPM, it is advisable to review it yourself first, then consult experts to determine whether the investment is viable.

This is where EB5AN comes in. Our team of professionals comprises industry leaders in the EB-5 space who have helped over 2,300 families obtain permanent residency status in the U.S.

If you would like to learn more about how to review PPMs or other EB-5 services we offer, please book a free consultation with our expert team today.

Foreign nationals located in the United States can use Form I-485, Application to Register Permanent Residence or Adjust Status, to change their immigration status to permanent resident. This allows them to receive Green Cards under one of several USCIS eligibility categories.

However, this is easier said than done. The process can be complicated. Applicants must keep track of many documents, fill out required forms correctly, and file them on time.

United States Citizenship and Immigration Services (USCIS) accepts most of the I-485 petitions it receives, but it still denies thousands of them every year. During the last quarter of 2023, USCIS rejected nearly 12% of the I-485s it received from applicants under the employment-based immigrant category.

You don’t want your application to be one of those.

In this article, we will provide checklists and explanations to help ensure your Form I-485 includes everything it needs for the best chance of approval.

Check Your Eligibility

The main EB-5 investor is called the principal applicant. This person typically invests in a new commercial enterprise that will eventually create at least 10 full-time jobs for American workers. This person also files Form I-485 and other required documentation.

A principal applicant who fulfills all of the EB-5 program’s requirements receives lawful permanent resident status for themselves and eligible family members.

But before you can apply to adjust your immigration status, you must meet a series of USCIS requirements, which include:

• Having an approved immigrant petition (Form I-526 or I-526E).
• Having an available visa number, per the USCIS Visa Bulletin.
• Being physically present in the United States.
• Never having entered the United States illegally.
• Not falling under certain grounds of inadmissibility without a waiver.

Let’s explore some additional requirements to change your lawful status.

An I-485 Checklist

Key Immigration Information You’ll Need

• Alien registration number (if applicable).
• Passport (even if expired).
• I-94 Arrival/Departure Record.
• Receipt number (if you have a pending or approved I-130 petition).
• Address history from the past five years.
• Employment history from the past five years.
• Marriage and divorce dates for any previous marriages.
• Information about organizations you have been involved with.

Other Forms to File with Form I-485

Many EB-5 investors find it necessary or desirable to file additional forms with their I-485s. These may include.

• I-130, Petition for Alien Relative.
• I-130A, Biographic Supplement (for a spouse).
• I-864, Affidavit of Support.
• I-693, Report of Medical Examination and Vaccination Record.
• I-765, Application for Employment Authorization (optional).
• I-131, Application for Travel Document (optional).

Gather Required Documentation

A successful I-485 applicant must provide the right evidence and supporting documents to USCIS. These include:

1. Government-issued photo ID: Typically copies of your passport pages or a copy of a driver’s license. Military identification also may be accepted.
2. Photos: Two identical passport-style photos (glossy, unedited, and printed on a white or off-white background) that were taken no more than 30 days before you submitted your I-485. Be sure you specifically requested that passport photos meet these criteria before submitting.
3. Birth and marriage records: Copies of your long-form birth certificate, marriage certificate(s), and divorce certificate(s), if applicable. If your birth certificate is not available, submit proof of its unavailability.
4. Form I-94 or alternative immigration documents: Include documentation proving you were inspected by an immigration officer and admitted or paroled into the United States. Provide copies of passport pages with visa stamps or a copy of your Form I-94 Arrival-Departure Record.
5. Form I-526/I-526E or Form I-797: You need to present one of these forms to show that you are eligible to adjust status under a particular immigrant category. If you file Form I-485 concurrently with your I-526/I-526E immigrant petition, include a copy of the I-526/I-526E. Otherwise, include a copy of Form I-797, Approval or Receipt Notice. This is the official notification that shows USCIS received your immigrant petition.
6. Criminal history documentation: Certified records of your court, police, charge, and conviction history, if applicable.
7. Medical documentation: Vaccinations and other medical records, including Form I-693, Report of Immigration Medical Examination and Vaccination Record, signed by a USCIS-designated civil surgeon. This is valid for two years from the signature’s date.
8. Biographic information: Each eligible immediate relative should complete and file Form I-130, Petition for Alien Relative.
9. Biometrics: USCIS may request your fingerprints, photos, and/or your signature at a biometrics appointment, which it will schedule with you later.

When it comes to I-485 approvals, it’s not just what you do that matters.

What you don’t do is equally important. Ensure you haven’t engaged in conduct that could get your application denied.

Beware of These Disqualifying Conditions

The main “inadmissibility grounds,” as described in the Immigration and Nationality Act, that can disqualify an I-485 petitioner fall under these buckets

• Criminal Activities: Such as serious crime convictions.
• Security Concerns: Indications of posing a threat to U.S. national security.
• Legal Issues: Violations of U.S. immigration law.
• Health Problems: Such as carrying a dangerous infectious disease.
• Miscellaneous: Other issues at the discretion of USCIS.

If you think one or more of these categories applies to you, be sure to speak with an experienced immigration attorney before filing. Waivers may be possible in some cases.

Use the Right Mailing Address and Enclose the Right Filing Fee

You must mail a copy of your I-485 petition with the correct filing fee ($1,440, effective since April 1, 2024) in a sealed envelope to the correct USCIS lockbox.

A lockbox facility collects documents and filing fees. This facility also determines whether your application will move forward based on the amount paid. If your application is rejected at this stage, you probably enclosed the wrong fee.

EB-5 investors should send their I-485s to the address below that corresponds to the delivery service used. Check the list of USCIS direct addresses for the latest guidance before filing your form.

USCIS Dallas Lockbox

U.S. Postal Service (USPS)

USCIS
Attn: I-526/E
P.O. Box 660168
Dallas, TX 75266-0168

FedEx, UPS, and DHL Deliveries

USCIS
Attn: I-526/E (Box 660168)
2501 S. State Highway 121 Business
Suite 400
Lewisville, TX 75067-8003

Why Concurrent Filing Is a Good Idea

Foreign nationals physically present in the United States on non-immigrant visas should strongly consider concurrent filing of Form I-485 and Form I-526E.

Made possible because of the EB-5 Reform and Integrity Act of 2022, concurrent filing is a good idea because it saves investors time. It allows them to get their conditional Green Card faster, including the associated benefits of lawful permanent resident status.

Foreign investors and their families are also eligible for improved work and travel flexibility while their I-485s are being adjudicated.

If you need a work permit, file Form I-765, Application for Employment Authorization. Filing this means you can get an Employment Authorization Document.

You may also wish to obtain a travel permit, also called an advance parole document. This lets a noncitizen travel outside of the country temporarily and come back to the United States with minimal hassle.

Other Form I-485 Best Practices

You can improve your chances of avoiding delays or denial by following these tips in completing your I-485 petition:

• Understand and ensure you meet all eligibility criteria for adjustment of status.
• Confirm you are using the most recent edition of Form I-485 (released on February 21, 2023).
• Read the filing instructions carefully.
• Ensure your answers are full and accurate.
• Type your responses or write them out neatly in black ink.
• Review this checklist of required initial evidence.
• Work with an experienced immigration lawyer to draft and submit the I-485.
• Respond to any USCIS requests for evidence promptly.
• Work with an experienced immigration attorney to draft the I-485 and address any legal issues that may arise related to your case.

While you await approval of your application, you should maintain your lawful status in the United States and monitor USCIS announcements for any updates to the process.

It’s also a good idea to make copies of your entire application, supporting documents, and receipts.

Check with EB-5 Experts Before Filing

Checking all the boxes on your I-485 application is only one part of a longer EB-5 process that may last a while, depending on your nationality and visa category. You must do more than understand the adjustment of status document checklist to receive Green Cards for yourself and qualified immediate relatives.

Don’t take the risk of getting your application denied by trying to do this on your own. Instead, be sure to work with seasoned professionals. They can give your full application the best chance of approval.

EB5AN has helped more than 2,300 families from 60 countries relocate to the United States as lawful permanent residents. Our expert team has more than a decade of experience, and offers clients first-rate, low-risk EB-5 regional center projects with 100% USCIS project approval rate to date.

If you have questions about anything connected to the EB-5 Immigrant Investor Program, do not hesitate to book a free call with us.

In the late 80s, when the U.S. economy struggled, lawmakers explored new ways to revive it. Around this same time, it had become popular for governments to boost commercial activity in their countries by attracting global talent and foreign investments. After observing the potential benefits of this strategy, Congress adopted the investment immigration option, which we now know as the EB-5 Immigrant Investor Program.

The EB-5 program provides a pathway for foreign investors to obtain permanent residency in the U.S., if they satisfy the EB-5 eligibility requirements regarding investments and job creation quotas. The EB-5 initiative works because both parties benefit from it: the U.S. boosts its economic growth while foreign nationals obtain permanent residency.

However, the EB-5 program has its pain points, and over the years, Congress and other stakeholders have sought several ways to improve its effectiveness. In this article, we will break down the EB-5 program history and explore the development of the program from its inception until now.

How Did the EB-5 Program Start?

Between the late 1980s and early 1990s, the U.S. experienced an economic decline due to high inflation and other tight monetary policies. As a result, the country faced rising unemployment rates, urging the U.S. Congress to enact new policies to improve the situation.

One such policy is the EB-5 visa program, which Congress enacted through the Immigration Act of 1990. The immigration initiative was the perfect match for the economic situation in the U.S., aiming to create more job opportunities and promote infrastructure by encouraging foreign investments.

The EB-5 Program Timeline

The success of the EB-5 program is largely due to several regulatory adjustments made by the U.S. Congress and other immigration regulators. This section will feature a comprehensive analysis of the program’s issues and the reforms put in place to maintain its economic relevance.

Inception to Late 1990s

When the U.S. Congress launched the EB-5 visa program in the 1990s, foreign investors’ participation was relatively low. This was primarily due to the significant capital investment amounts needed and other complex regulatory requirements of the program.

To encourage EB-5 investors, the U.S. immigration regulators introduced the EB-5 Regional Center Program in 1992. Regional centers are entities designated by the U.S. Citizenship and Immigration Services (USCIS) to facilitate investments on behalf of foreign investors.

The new entities made the EB-5 pathway to permanent residency more accessible, being able to rely on regional center teams to navigate the EB-5 program’s regulations.

The regional center concept successfully increased investors’ participation in the initiative and drove employment opportunities in targeted employment areas (TEA) through direct and indirect job opportunities.

However, the initial EB-5 program model was also vulnerable to fraud and misuse. In the high-profile fraud case of the U.S. District Court v. O’Connor, the defendants falsified bank transactions, claiming that investors had met the EB-5 program’s investment requirements. To combat this issue, USCIS and the Administrative Appeals Office (AAO) enforced more stringent regulations to ensure EB-5 investments were legally funded.

Following the new reforms, the AAO used specific examples to ensure decisions were consistent and the new rules were applied correctly. The following four cases, in particular, were critical in defining the structure of the EB-5 visa program in operation today:

• Matter of Ho: The case informed the USCIS regulations on the EB-5 job creation criteria. The ruling emphasized the need for comprehensive and feasible business plans to meet the EB-5 job creation requirements.
• Matter of Izummi: In this case, the court highlighted the need for investors to be involved in managing their EB-5 projects. The case reinforced the “at-risk” requirement of EB-5 programs, clarifying that only projects subject to profit or loss will be valid EB-5 investments.
• Matter of Hsiung: The decision in this case stressed the EB-5 program requirement that all investment funds must belong to the investor(s) and be obtained legally.
• Matter of Soffici: This case supports the Matter of Ho, specifying that EB-5 investments must create employment for at least 10 full-time U.S. workers, among other key decisions.

The EB-5 Program in the 2000s

In 2005, USCIS established the Investor and Regional Center Unit (IRCU) to enhance the management of the EB-5 regional centers. The new regulatory body worked to improve the integrity of the EB-5 program by streamlining the process and ensuring better compliance with its regulations. By this time, the EB-5 program had become more popular, with more foreigners gaining confidence in the effectiveness of the EB-5 pathway to U.S. residency.

The 2012 EB-5 Reform

By 2012, demand for EB-5 applications had increased vastly. However, immigration regulatory bodies struggled to keep up with the scale and complexity of investors’ applications. In addition, fraud and mismanagement were still rampant within the EB-5 industry, requiring stricter policies and more reforms by USCIS.

In response to these issues, USCIS introduced the annual reporting requirement for regional centers and released memoranda clarifying previous EB-5 regulations for better implementation of the program. The immigration agency also worked to increase engagement with investors to address their concerns and improve EB-5 investment transparency.

2015 – 2019: Major Policy Changes in the EB-5 Program

From around 2015, the U.S. Congress began to introduce new bills to modernize the EB-5 Immigrant Investor Program. By the end of 2019, these legislative changes took effect, representing one of the most significant reforms to the EB-5 program since its inception.

The updated EB-5 legislation included an increase in the minimum investment amount from $1 million to $1.8 million, and $500,000 to $900,000 for targeted employment areas.

Furthermore, the new rules modified the criteria for designating targeted employment areas and authorized the Department of Homeland Security (DHS) to designate them. The objective here was to ensure a fairer distribution of benefits across rural and urban areas and channel investments to areas that needed it the most.

Relapse of the Regional Center Program in 2021

The Regional Center Program is subject to periodic renewals by Congress. The existing Regional Center Program was set to expire on June 30, 2021. However, stakeholders felt the need to modify the program before reauthorizing it.

Unfortunately, Congress could not agree on what legislative adjustments to include in the new reform, further delaying the passage of a reauthorization bill. The bill was not passed by the given deadline, resulting in the lapse of the Regional Center Program.

Consequently, new and ongoing EB-5 applications were suspended indefinitely, causing significant disruption of the EB-5 processes for many investors.

Reinstatement of the Regional Center Program in 2022

In 2022, Congress worked out a more stable framework for the EB-5 program by enacting the EB-5 Reform and Integrity Act of 2022. The new act aimed to combat fraud by enforcing stricter auditing and reporting requirements for direct investors and regional centers.

Also, the act authorized a new Regional Center Program that will last until September 30, 2027, with the new minimum investment threshold of $1,050,000 (and 800,000 in targeted employment areas). The idea was to reinstate an extended Regional Center Program to provide more stability to EB-5 investors and ensure the initiative’s sustainability. In addition, the act included provisions that shorten EB-5 processing times and offer various benefits to new investors.

The Current State of the EB-5 Program

There have been more adjustments in the EB-5 framework since 2022. In 2023, USCIS changed the status of approximately 100 rural TEA and metropolitan statistical area designations across the nation. Most recently, the agency’s fee hike of April 1, 2024, increased the filing fee of Form I-526E to $11,160.

There are also ongoing discussions about the agency’s policies, including the EB-5 investment sustainment period update.

Prospective investors are encouraged to follow industry updates closely to stay informed about EB-5 visa developments and recent trends.

Achieve EB-5 Success with EB5AN

The numerous adjustments to the EB-5 program have resulted in a reliable pathway to obtaining permanent residency in the U.S.

However, like all other immigration processes, this one can also be complex, so investors should plan for challenges in their EB-5 journey. After you’ve chosen the EB-5 route to U.S. residency, the next step should be to contact professionals in the industry.

EB5AN has successfully facilitated the EB-5 process for over 2,300 families. Our team of experts includes highly experienced EB-5 specialists who can guide you in achieving financial and immigration success.

If you would like to learn more about the EB-5 program, please schedule a free consultation today.

The EB-5 Immigrant Investor Program is one of the employment-based visa options in the U.S. The program aims to boost economic growth by enabling long-term investments by foreign nationals. By doing so, the U.S. attracts global investors and increases job opportunities and economic activity while the investors are granted permanent residency.

Like other employment-based visas, the EB-5 application process can take several years to complete depending on the specific visa category and the investor’s nationality. Within that time, foreign nationals may need to leave the country temporarily. However, there are serious consequences for investors who travel abroad without following the procedures laid out by the U.S. Citizenship and Immigration Services (USCIS).

An Advance Parole (AP) is the most important document an EB-5 applicant needs to travel internationally while their EB-5 process is ongoing. In this article, we will explain the importance of an AP and how EB-5 investors can obtain one through concurrent filing.

Why Is an Advance Parole Important to EB-5 Investors?

Certain travel restrictions generally apply to individuals seeking employment-based visas in the U.S. The immigration process can be lengthy across many visa categories, and within that time, applicants usually need to travel abroad for one reason or another.

EB-5 investors without conditional Green Cards need to file Form I-131 before traveling abroad in order to prevent abandonment of their EB-5 visa process. When USCIS approves this form, EB-5 applicants obtain a special travel document called an Advance Parole (AP). With this document, they can leave the U.S. and re-enter without terminating their EB-5 visa process.

EB-5 investors who fail to obtain an AP before leaving the country risk starting their immigration processes from the beginning. Consequently, the investor’s EB-5 process and adjustment of status (AOS) application may become longer than necessary, making it harder to obtain permanent resident status in the U.S.

While an AP is required for travel abroad, it doesn’t guarantee re-entry. The U.S. Customs and Border Protection (CBP) requests other documents and interrogates foreign nationals on them at the border. Therefore, investors must travel with caution, carry their complete documents, and answer any questions with conviction to ensure the continuity of their immigration processes.

Who Is Eligible to Obtain an Advance Parole?

The first step in obtaining an AP is to ensure you have filled out the right petitions and that your documents are complete. Below, we’ve listed four factors applicants should consider before applying to USCIS for an AP.

Pending Adjustment of Status (AOS) Application

Foreign nationals who have filed Form I-485 (Application to Register Permanent Residence or Adjust Status) and expect to obtain permanent residency or adjust their status are eligible to apply for an AP. This category includes EB-5 investors waiting to receive conditional permanent residency.

Reason for Travel

Investors must convince USCIS that their reasons for requesting a travel permit are valid. This may include anything from business meetings to leisure purposes.

USCIS also does its part to speed up the AP application where an urgent humanitarian need arises, such as medical treatment or serious family-related issues.

Compliance with EB-5 Requirements

Foreign nationals who apply for an AP must comply with all EB-5 requirements, from the minimum investment threshold to the job creation criteria. Defaulting on any requirements may prevent applicants from obtaining their advance parole documents.

Even after USCIS grants an AP, the agency will revoke the travel permit and terminate the entire EB-5 process if an investor fails to fulfill any EB-5 requirements.

Documentation

EB-5 investors need to present their I-526 or I-526E immigrant petition as proof of their ongoing EB-5 investments in the U.S. They also need a copy of their I-485 petition to show that they are processing permanent residency in the U.S.

Other helpful documents may include medical reports, scheduled business meetings, proof of school engagements, etc., to further validate your AP application.

How to Apply for an Advance Parole as an EB-5 Investor

Previously, U.S. immigration laws prevented EB-5 investors from initiating their AOS application during their EB-5 visa processing. However, changes with the EB-5 Reform and Integrity Act of 2022 now allow eligible EB-5 investors who are present in the U.S. to file for both processes simultaneously through EB-5 concurrent filing.

A key benefit of concurrent filing is that these EB-5 investors can also apply for an advance parole and employment authorization document (EAD) at the same time, meaning that they can benefit from work and travel flexibilities before obtaining their Green Cards.

Furthermore, with the new provision, investors can begin their applications well on time and obtain travel permit documents in a matter of weeks, before any urgent situations arise.

Below is a step-by-step guide for applying for advance parole as an EB-5 investor.

Ensure Your Eligibility

To file Form I-131, investors must be engaged in a pending AOS process, either expecting permanent residency registration or an adjustment of status. Most times, investors show their notice of action document as proof of their pending application status. If you are a foreign national in a valid non-immigrant visa status for whom a visa is immediately available, you may be able to file your I-526E, I-485, and I-131 at the same time.

Fill Form I-131

Once you are certain you are eligible to apply for an AP, the next step is to fill out Form I-131, USCIS’s official application for a travel permit. This step involves providing all the required documents and paying the necessary fees as stated on the USCIS official website. The U.S. immigration agency changes its filing fees periodically, so it is advisable to confirm and pay the correct fee amount to prevent any rejections.

Submit Your Application

Applicants need to mail their forms and fees to their designated USCIS Lockbox Facility. It is preferable to use a trackable mail service so applicants can monitor and ensure the safe delivery of their immigration documents.

The processing times for AP applications can vary. Each applicant’s unique circumstances influence the decision to grant a travel permit. While you can expect the process to take only a few months if not less, you should still do your best to prevent delays.

Once Form I-131 has been approved, USCIS will send the AP, and the investor will be free to travel internationally while their immigration processes are pending.

Challenges Faced by EB-5 Investors Seeking an Advance Parole

Here are some of the challenges investors may face while applying for an AP document.

Extended Processing Time

EB-5 investors often seek travel permit documents for urgent reasons such as medical treatment, illness of a loved one, or even business ventures that directly influence their EB-5 investments. Unfortunately, applicants may experience an undue delay in their AP processing, which could be consequential for them, their families, and their investments.
To mitigate this risk, make sure you file all forms and supporting documents correctly and in full. It is also highly recommended that you seek help from an experienced EB-5 immigration attorney while preparing and filing your applications.

Investing in rural EB-5 projects, which is a set-aside EB-5 targeted employment area category that comes with the benefit of priority processing, can also significantly reduce the wait times for new EB-5 investors.

Impact on AOS Application

Foreign nationals with pending AOS applications must only travel abroad after receiving their travel permit documents from USCIS. Traveling without the approval of Form I-131 can terminate an investor’s EB-5 visa process and their AOS application.

Additionally, EB-5 investors should be mindful of the length and frequency of their travel and try to maintain a stable presence in the U.S. Taking frequent, extended trips abroad may raise concerns as to whether an investor is really interested in obtaining permanent residence in the U.S. Such speculations can affect the success of the EB-5 application and future attempts at naturalization.

Expiry Date and Renewal of Advance Parole Documents

In September 2023, USCIS increased the maximum validity period for advance parole documents to five years. However, applicants should refer to their travel permit documents to know the specific expiration date of their APs.

Since approval for I-131 can take more than a month, it is important to stay ahead by applying for a renewal well before the previous AP expires. Foreign nationals must ensure their advance parole documents do not expire while abroad, as the consequence may be the termination of their ongoing immigration processes.

Regulatory Changes

Periodic adjustments in U.S. immigration policies can affect investors’ immigration statuses and eligibility for advance parole, making the application process more complex than necessary. As a result, investors should try their best to stay informed of changes in the U.S. immigration policies and the EB-5 industry at large.

Obtain an Advance Parole Seamlessly with EB5AN

As is the case with many forms, working with industry experts to obtain travel permits for you and your family can make your application process smoother and ensure the continuity of your EB-5 visa and AOS applications.

EB5AN has assisted over 2,300 families worldwide, ensuring the success of their EB-5 visa processes. If you are an EB-5 investor desiring to travel abroad, or a prospective investor who would like to know more about the steps involved, please schedule a free consultation today and our expert team will be happy to help you.

For decades, Canada has upheld a brand that promotes inclusive economic growth. The country’s policies show a clear aim for sustainable development, aiming to support the vulnerable groups in society. Efforts like the Canada Child Benefit (CCB) program, minimum wage laws, and progressive taxation policies are designed to provide equal economic opportunity for Canadian residents.

The Canadian Department of Finance recently made significant changes to its taxation laws, which include measures to discourage tax avoidance while bridging the income distribution gap among residents.

In this article, we will cover the highlights of Canada’s new tax fairness laws, as outlined in its 2024 budget. Furthermore, we will compare Canadian and U.S. tax laws, and discuss how the EB-5 visa program can benefit Canadian investors.

 

What Is Canada’s Tax Fairness for Every Generation?

The year 2024 will be pivotal for the Canadian taxation system and economy at large, due to the new anti-avoidance tax laws outlined in the country’s 2024 budget documents. The Canadian Department of Finance aims to influence income distribution to favor less-earning Canadians by placing higher taxes on income from capital gains.

Essentially, the Canadian government found that many young people struggle to get by, unlike older generations. The global pandemic triggered a rise in the cost of living, making it difficult for younger middle-class Canadians to achieve financial security. On the other hand, the top one percent in the Canadian economy, comprising an older generation, earns more and pays less taxes.

Acknowledging this problem, the Canadian government, through its finance department, has enacted new tax laws.

Canada’s new tax fairness policy aims to reduce the taxation burden on middle and lower-class individuals while compelling the upper class to contribute more to the economy.

Tax Laws on Capital Gains in Canada

Before the new taxation policies, the Canadian upper class enjoyed a capital gains tax advantage, paying tax on just half of the income derived from capital gains. However, the country’s 2024 budget documents now mandate that individuals who earn over $250,000 in annual capital gains pay tax on two-thirds of their income. Specifically, the new update calls for an increase in capital gains tax from 50% to 67%.

The updated tax policies in Canada imply that individuals who earn a high income from capital investments will pay higher taxes. For example, an individual who makes a $400,000 annual profit from capital investments will pay $125,000 (50% of $250,000) plus $100,000 (⅔ of $150,000) as of June 25, 2024. That is a total of $225,000, a whopping $25,000 more than what they would have paid before June 25, 2024.

An article on tax fairness from the Canadian Department of Finance indicates that only about 0.01 percent of Canadians under 30 are expected to have capital gains above the $250,000 annual threshold in 2025. In other words, the new tax fairness laws mostly affect the older, upper-class demographic.

The updated tax laws maintained the exemption of certain domestic assets from taxation to ease the financial burden on the middle and lower-class demographic. Consequently, assets such as tax-free savings accounts, pension plans, and principal residences will not be taxable, if they are registered accordingly.

Alternative Minimum Tax

Canada’s new taxation laws also updated the previous Alternative Minimum Tax (AMT) system. The system was adopted to curb tax avoidance by limiting the use of tax credits and other tax deduction methods.

Canadian residents with taxable income compare their minimum tax to their usual tax liability to determine whether they will pay AMT. If the AMT is higher, they pay the difference; if it’s lower, they pay their usual tax amount.

The 2024 budget documents modified Canada’s AMT policy to include a broadened AMT base. The government increased the percentage of taxable capital gains, once again targeting individuals who earn a high income from investments.

Canadian vs. U.S. Taxation Laws

Changes in Canada’s tax rules prompt investors to compare taxation laws in Canada and the USA.

While both countries tax high-income earners, the U.S. tax system stands out for its favorable treatment of investors. Unlike Canada, the U.S. offers more opportunities for deductions and credits, providing investors with several pathways to mitigate their tax liabilities and optimize their financial returns.

One key advantage of the U.S. tax system is how it encourages investment and entrepreneurship through various tax breaks and incentives. For example, the U.S. provides generous deductions for business expenses, including research and development costs, equipment purchases, and employee wages. It also offers favorable tax treatment for long-term capital gains, with lower tax rates applied to investments held for more than one year.

The U.S. tax code also allows for a wide range of deductions and credits for specific industries and activities, such as real estate development, renewable energy investments, and charitable contributions. Additionally, investors in the U.S. have more tax-saving options. They can reduce taxes and increase profits through strategic planning.

Ultimately, the choice between Canada and the U.S. as an investment destination depends on personal goals, risk tolerance, and preferences. Canada has its own advantages, but the U.S. stands out with its low taxes and investor-friendly policies.

Investors should seek guidance from qualified tax professionals to make informed investment decisions and avoid losing money.

Obtain Permanent Residency in the U.S. Through EB5AN

The EB-5 Immigrant Investor Program presents the perfect opportunity for Canadian investors looking to immigrate to the U.S. This initiative offers foreign nationals the opportunity to obtain permanent residence in the U.S. in exchange for boosting the country’s economy through investments.

If the taxation laws in the U.S. align with your long-term financial goals, then EB5AN can help you get your Green Card fast. With over a decade of experience, we have successfully facilitated the EB-5 process for over 2,300 families, including Canadian nationals.

For more information on how we can help you kickstart your EB-5 journey, schedule a free consultation with EB5AN today.

Foreign nationals who seek to become lawful permanent residents of the United States must typically file Form I-485, Application to Register Permanent Residence or Adjust Status. This is one of the most important steps in the EB-5 Immigrant Investor Program.

An approved form means the applicant can get a U.S. Permanent Resident Card, more commonly known as a Green Card. This provides many benefits, including the right to live and work in the United States.

However, the application process can be tricky. Making a big mistake on Form I-485 could result in a processing delay at best or a rejection at worst. A denied I-485 means losing out on the benefits that come with U.S. permanent residence, as well as a great deal of time and effort. You don’t want to get this wrong.

In this article, we’ll explain the process of submitting Form I-485 step by step, and tell you who to contact to give your application the best chance of success.

Part 1: Information About You – Names, Addresses, and Arrivals

The first section requires your current legal name. If the name on your current passport has not changed, fill out this section with it spelled exactly as it appears on the passport.

If you have changed your name, provide written evidence that this was done legally. For example, if you got married, include a copy of the marriage certificate.

The second section requires that you provide any other names you have used since birth. If you once had a maiden name, write that out here.

In the section that requests your mailing address, provide one that you can regularly access to get correspondence from the United States Citizenship and Immigration Services (USCIS). This does not have to be your residential address. You can use a P.O. Box if you prefer.

You must also identify the port of entry in the United States where the U.S. Customs and Border Protection (CBP) inspected you.

To complete the Form I-94 Arrival-Departure Record Number section, pull up the I-94 website to locate your record number and other required information.

Part 2: Application Type or Filing Category

The first section requires you to identify your application type or filing category. Select only one. For example, if you are an EB-5 investor, check the box for alien entrepreneur, Form I-526 under the employment-based category.

In the section requesting information about your immigrant category, be aware that if you are an EB-5 investor, you are the principal applicant. Each of your qualified immediate family members applying with you would be considered a derivative applicant.

Part 3: Additional Information About You – Application, Address, and Employment History

First, you should indicate whether you previously applied for an immigrant visa to become a permanent resident of the United States via a U.S. embassy or consulate. In most cases, this means you submitted Form DS-260. If you did apply, provide the city and country of the U.S. facility where you filed and details regarding the decision.

In the next section, fill out your address history and employment history from the last five years. If you don’t have enough room to fill it out completely, use the last page’s Part 14 to finish your entries. Revealing that you were unemployed at any time during that period will not adversely affect your petition. However, being an unauthorized employee in the United States might get your application denied.

Part 4: Information About Your Parents

In this section, you’ll answer questions about your parents. Include the dates and locations of their birth and where they currently reside, if applicable. Indicate if one or both of them has died. If you do not have information about your parents, indicate that you do not know.

Part 5: Information About Your Marriage(s) – Past and Present

If applicable, provide details about your marriage(s), including current and past spouses. This section is most important for those seeking marriage-based permanent residence.

Part 6: Information About Your Children – Names, Birthdays, Birthplaces

Here, you will share information about each of your living biological, adopted, and step children. Fill this out completely, regardless of whether they are eligible to immigrate to the United States with you.

Part 7: Biographic Information – Ethnicity, Race, Appearance

In this section, you will indicate your race(s) by selecting one or more of the options listed. Note that USCIS does not consider Hispanic to be a race; if you are a Hispanic applicant, you must choose one or more of the other options, such as “white,” “black,” or “American Indian.”

Part 8: General Eligibility and Inadmissibility Grounds – Criminal, Security, Financial, and Other Issues

In this section about grounds of inadmissibility for permanent residence, you will need to provide details regarding your past and present organizational affiliation(s) worldwide. These may include political, military, and religious associations.

Study each of these questions closely and double-check each response to ensure you do not misrepresent anything. Some applicants have engaged in activities that resulted in their I-485s being denied. The greatest risk to your application comes from participation in organizations that violate American laws and values.

You may wish to consult an experienced immigration attorney in drafting your responses to these questions.

Part 9: Accommodations for Those with Disabilities and/or Impairments

Here you may indicate whether you need reasonable accommodations for any mental or physical disability you may have. Specify the nature of your disability or impairment. Also add details on what kind of assistance you require. USCIS provides accommodations to allow those with disabilities full access to their services.

Part 10: Applicant Signature and Contact Information

In this section, convey whether you completed Form I-485 by yourself or had help from a professional preparer, relative, friend, and/or interpreter.

Here you should also input your contact information so that USCIS can get in touch with you if necessary.

Finally, sign in the correct field.

Part 11: Interpreter’s Signature and Contact Information

Here you will provide details about any interpreter you used to understand the application, if applicable. The interpreter will also sign this section.

Part 12: Preparer’s Signature and Contact Information

If you filled out the application by yourself, you do not have to write anything in this section.

If someone else prepared the application on your behalf, you should include details about the preparer here. That person would also provide a signature in this section.

Part 13: Signature at Interview

You should not write anything in this section until a USCIS official tells you to sign it during an interview.

Frequently Asked Questions

What Evidence Should I Submit with Form I-485?

An applicant needs to submit more than just Form I-485. The application package should include supporting evidence that confirms the petitioner is eligible to adjust their immigration status.

The required documentation can vary depending on an individual’s circumstances. However, it typically includes the following:

1. Form I-485: Confirm that you signed, dated, and filled it out correctly.
2. Filing Fee: Enclose the filing fee ($1,440 at the time of writing) or ask to receive a fee waiver if you are eligible.
3. Identification Documents: Include copies of your passport, birth certificate, or another form of government-issued identification.
4. Photos: Provide two passport-style photos (identical copies, glossy, on a white background) of the applicant that were taken within the previous 30 days.
5. Form I-94: Include a copy of Form I-94, Arrival/Departure Record, that you received from CBP.
6. Form I-693: Include medical exam and vaccination records from a civil surgeon on Form I-693. This shows that you have not been disqualified from entering the country due to health concerns.
7. Form I-864: Provide Form I-864, Affidavit of Support from the petitioner or sponsor, if applicable. This document shows the applicant will have financial support.
8. Form I-765: If you require an employment authorization document (EAD), provide a filled-out Form I-765.
9. Form I-131: If you wish authorization to travel abroad as a permanent resident (also called advance parole or AP) provide a filled-out Form I-131.
10. Personal Records: Include copies of your birth certificate, marriage certificate(s), and divorce certificate(s), if applicable.
11. Proof of Lawful Entry: Include copies of any documents (for example, a visa or passport stamp) that show you entered the country lawfully.
12. Police Clearance Certificate: Include a police clearance certificate from every country you resided in for over six months since the age of 16, if applicable.
13. Proof of Eligibility: Depending on your filing category, you may need to include other documentation. For example, if you are an EB-5 investor filing concurrently with your I-526E immigrant petition, include a copy of the I-526E or the Form I-797 that acknowledges USCIS received your petition.

When Should I File Form I-485?

The best time to file Form I-485 may vary, depending on your filing category and other factors. In all cases, you must read the filing instructions carefully.

We will focus on guidance for employment-based visas. Keep the following considerations in mind. After you have met these requirements, you will be ready to file.

1. You Have an Available Visa: Check the Department of State’s latest Visa Bulletin to see whether there is an available visa for your priority date and preference category. If your priority date is current (marked by a “C”) on the Visa Bulletin, you may be eligible to file Form I-485.
2. Your Immigration Status Is Valid: If you are physically present in the United States, you may typically remain there when you submit Form I-485. If you are outside of the United States, you should apply for a DS-260 via consular processing instead of filing an I-485.
3. You Have Made a Decision on Concurrent Filing: Many applicants choose to file Form I-485 concurrently with their immigrant petition. We encourage EB-5 investors to do this, which can save time.
4. You Are Eligible for Adjustment of Status: Confirm that you have fulfilled the criteria to be approved for adjustment of status and that grounds of inadmissibility do not apply to you. Some criminal activities or immigration violations may disqualify your application, unless you receive a waiver or address these issues first.
5. You Have Supporting Paperwork: Compile supporting documents, such as your proof of eligibility, medical records, and identification documentation before you file.
6. You Have Consulted an Immigration Attorney: It’s a good idea to reach out to an experienced immigration lawyer, especially if you have questions about whether you qualify or if you have complicated issues to resolve. An attorney can tailor guidance to the specifics of your case.

What Is the Purpose of Form I-485?

Submitting Form I-485 is an important part of the immigration process. One of multiple forms, it permits qualifying foreign nationals to change their nonimmigrant or temporary immigration status and become (conditional) permanent residents of the United States. This status is also more commonly known as being a Green Card holder.

Becoming a lawful permanent resident means an individual may work and live in the United States permanently. In addition, Green Card holders may travel freely, work without major restrictions, and eventually apply to become citizens of the United States.

Filing this form allows USCIS to review biographic information about an applicant so it can make an informed decision about whether to grant them lawful permanent resident status.

Approval of Form I-485 lets qualified applicants become a part of American society, pursue work opportunities, and contribute to the United States as lawful permanent residents.

Who May File Form I-485?

If you are a foreign national currently located in the United States and meet other criteria, you can file Form I-485.
Most of those who submit Form I-485 do so under one of these immigration categories:

1. Family-Based Immigration: Applies to an alien relative, such as spouses, children, parents, and siblings.
2. Employment-Based Immigration: Such as priority workers, professionals with advanced degrees or exceptional ability, skilled workers, special immigrants, and immigrant investors.
3. Diversity Visa Lottery Winners: Those chosen under the Diversity Visa Lottery program.
4. Refugees and Asylees: Individuals who receive refugee or asylee status.
5. Special Immigrant Categories: Individuals including Afghan or Iraqi citizens who worked for the U.S. government.
6. Victims of Abuse or Crime: Victims of domestic violence or certain crimes.
7. Other: Those who have received parole on humanitarian grounds, have been judged as providing significant public benefit, or meet other criteria under the Immigration and Nationality Act.

However, being qualified to apply under one of these immigration categories is not a guarantee of approval. Some individuals will be disqualified if certain circumstances apply to them.

Who May Not Be Eligible to Adjust Status?

Some foreign nationals cannot be approved for adjustment of status to become lawful permanent residents of the United States. The Immigration and Nationality Act describes these restrictions—or grounds of inaccessibility—in detail. Here is a broad overview of the situations that may disqualify an applicant from adjusting their status:

Medical Grounds: Those who have certain health conditions—such as carrying dangerous infectious diseases or posing a significant public health risk—may be disapproved of adjusting their status.

Criminal Grounds: Those convicted of particular crimes—such as felonies, drug trafficking, and other serious offenses—may not be eligible to adjust status.

Unlawful Entry or Status: Those who crossed into the United States without inspection or did not receive lawful immigration status before entering the United States typically cannot adjust status. Certain exceptions may apply, such as under the Violence Against Women Act.

Immigration Violations: Those who have committed immigration fraud, not abided by the terms of their nonimmigrant status, or performed unauthorized work may be denied adjustment of status. Other examples of such violations include exceeding an authorized period of stay and violating the terms of a valid visa.

Security Concerns: Those who are considered a threat to U.S. national security may be unable to adjust status. Examples of such concerns include affiliating with terrorists or conducting espionage.

Public Charge Concerns: Those who cannot financially support themselves without major public assistance may be unable to adjust status.

What Is the I-485 Filing Fee?

The filing fee has increased from $1,140 ($1,225 with biometric services) to $1,440 (with biometric services), effective April 1, 2024.

USCIS will reject any application filed on or after this date if the updated fee is not enclosed.

Fees are subject to change. It is recommended that applicants confirm current filing fees by checking the USCIS website before mailing in their applications. In some situations, fee waivers are possible for petitioners who cannot afford to pay them.

What Is the I-485 Filing Address?

The appropriate filing address varies between applicants. Factors including immigration category and current residence location will affect this.

EB5AN works most frequently with EB-5 investors, and we advise our clients to mail hard copies of their I-485 petitions to the correct USCIS lockbox.

Lockbox facilities collect documentation and filing fees. They also determine whether to accept or reject an application based on the enclosed fee. A denial at this stage generally means the applicant sent the wrong fee amount.

EB-5 investors should send their I-485s by mail or courier service to one of the lockboxes below, depending on which delivery service they choose. Addresses are subject to change, so review the list of USCIS direct addresses for the latest information before submitting your I-485.

USCIS Dallas Lockbox
U.S. Postal Service (USPS)

USCIS
Attn: I-526/E
P.O. Box 660168
Dallas, TX 75266-0168

FedEx, UPS, and DHL Deliveries

USCIS
Attn: I-526/E (Box 660168)
2501 S. State Highway 121 Business
Suite 400
Lewisville, TX 75067-8003

You can sign up to receive an email and/or text message alert acknowledging the USCIS lockbox received your form. To do this, fill out Form G-1145, E-Notification of Application/Petition Acceptance. Attach it to the first page of your application.

What Happens After I File Form I-485?

After you mail Form I-485 to USCIS, be ready for several next steps in the application process.

1. Save Your Receipt Notice: USCIS will send you a receipt notice (Form I-797, Notice of Action) to acknowledge they have your application. Take note of the receipt number so you can track your case’s progress online.
2. Schedule and Participate in a Biometrics Appointment: USCIS often schedules applicants for biometrics appointments. You can expect to have your fingerprints, photographs, and signature taken then and there to verify your identity and for use in a background check.
3. Answer Questions from USCIS: Sometimes USCIS needs more documentation or has clarification questions for applicants before it can adjudicate Form I-485. If this is the case, you may receive a formal Request for Evidence. Be sure to respond within the time frame provided.
4. Schedule and Participate in an Interview: In addition to the biometrics appointment, USCIS may require you to participate in an interview at a local USCIS field office. There, USCIS will confirm details from your application, determine whether you are eligible to adjust status, and request more information if necessary.
5. Receive Adjudication Decision: USCIS will decide on your case after it has reviewed your application, paperwork, and interview(s). Approval means you will get a Green Card (Form I-551) in the mail.
6. Gain Conditional Permanent Resident Status: Depending on your immigration category, you may receive conditional permanent resident status. This is the case for EB-5 investors. Such investors receive two-year conditional permanent resident status. During the 90-day period toward the end of that time frame, they should file Form I-829 to remove conditions and become unconditional lawful permanent residents of the United States.
7. Respond to Denial (if Applicable): If your I-485 is denied, you may be able to appeal it or request that your case be reopened.

EB5AN Can Help You Become a Permanent Resident of the United States

It’s important for those who wish to become lawful permanent residents of the United States to understand how to fill out and file Form I-485. It’s even more important to work with experts who can guide you through each step of the process and answer your questions.

Consider participating in the EB-5 Immigrant Investor Program, which is one of the most straightforward ways to achieve permanent residency status in the United States.

EB5AN has helped more than 2,300 families from 60 countries relocate to the United States as lawful permanent residents. Our expert team has more than a decade of experience, and offers clients first-rate, low-risk EB-5 regional center projects with a 100% USCIS project approval rate to date.

Please book a free consultation today to find out how we can do the same for you.

Professionals who would like to live and work in the United States frequently seek H-1B status. The visa has become less appealing over the years, however, due to increased demand and the various restrictions associated with the program. The EB-5 program, in contrast, has become increasingly popular due to the unlimited opportunities it offers to those seeking to either establish or extend their immigration status in the United States.

Recognizing that there’s no one-size-fits-all to immigration planning, this article discusses the H-1B and EB-5 programs, aiming to help foreign nationals decide which visa path best suits their needs.

 

What Is the EB-5 Program?

The EB-5 program, often referred to as the Immigrant Investor Program, offers a pathway for eligible investors and their immediate family members (spouse and unmarried children under the age of 21) to gain permanent residency in the United States.

Originally legislated in 1990 by the U.S. Congress, the EB-5 program aims to stimulate economic growth through foreign investment. To qualify, investors must make a substantial capital contribution to a new commercial enterprise and generate at least 10 permanent full-time jobs for qualifying U.S. workers.

The EB-5 program provides two primary avenues for investment. One option is for investors to directly finance and operate a business in the United States. Alternatively, investors may opt to invest through EB-5 regional centers. Designated by the United States Citizenship and Immigration Services (USCIS), regional centers coordinate larger projects by pooling investments from multiple sources, and are responsible for overseeing the job creation requirement of the EB-5 program.

Investments within designated high-unemployment or rural locations, called targeted employment areas (TEA), have a lower minimum investment threshold of $800,000. For investments made in projects outside these areas, the minimum investment is $1,050,000.

What Is the H-1B Program?

The H-1B program was created to allow individuals working in specialty occupations to live and work in the United States. In order to qualify for this visa, applicants must have a job offer from a U.S. employer, as well as a minimum of a bachelor’s degree or its equivalent in a field related to the job for which they are applying.

In addition, the hiring employer must demonstrate that the position requires specialized knowledge, and that they will pay the prevailing wage for the role. The prevailing wage refers to the customary wage paid to similarly employed workers in a particular geographic location within the United States.

H-1B Visa as an Option for International Students

H-1B visa classification is particularly sought after by individuals already in the United States in F-1 non-immigrant student status. This is because the authorized period of stay for students in F-1 status ends as soon as the student completes their course of study.

A program called Optical Practical Training (OPT) allows eligible F-1 students to remain in the U.S. to pursue employment in their field of study. This extension, however, is for a maximum period of 12 months only (or 24 months for students in STEM fields). Following OPT completion, students are once again faced with the mandate to leave the United States.

Because H-1B status allows students to remain in the United States after completing their course of study, students nearing the end of their F-1 or OPT status often seek out the H-1B option. While it is true that obtaining an H-1B visa allows F-1 visa holders to extend their stay in the U.S., the H-1B program contains numerous restrictions that can interfere with an applicant’s long-term immigration goals. This is why it’s best to consider multiple options before choosing to pursue the H-1B route.

What Are the Limitations of the H-1B Program?

The principal limitations of the H-1B visa include the following:

Limited Duration of Stay

In most cases, H-1B visa holders can only remain in the United States for a maximum period of six years. With limited exceptions, once the six-year time limit has been met, a person in H-1B visa status must leave the U.S. and remain outside of the country for at least one year.

Annual Cap

Perhaps the greatest limitation of the H-1B program is the annual cap on the number of H-1B visas available to new applicants. While the U.S. Congress has authorized 65,000 visas for qualifying individuals (and an additional 20,000 for individuals holding U.S. master’s degrees), the demand for H-1B visas vastly outnumbers that amount. In fact, in fiscal year 2024, the number of H-1B applicants reached an all-time high of 780,884.

Lottery System

Because the demand for H-1B visas is so much greater than the number of visas available, a lottery system is in place. Under this system, a limited number of H-1B registrations are randomly selected for further adjudication. The unpredictable nature of this process makes it difficult, if not impossible, for applicants to make long-term personal or career plans.

Employment Sponsorship Requirement

Self-sponsorship is not available for the H-1B visa category. This means that anyone seeking to obtain H-1B status must first identify an employer willing to sponsor them for the visa. It is becoming increasingly difficult to find employers willing to sponsor H-1B applicants, however. This is in large part due to the uncertainties associated with the lottery system, as well as with the costs and administrative burdens that employers must assume if they wish to hire an H-1B employee.

Limited Employment Options

H-1B visa holders must remain employed in the position for which they were originally hired. They may not work for another employer without filing a new H-1B application, and they are prohibited from starting their own businesses.

Geographic Restrictions

Employees in H-1B status must live and work where their employer dictates and are not free to relocate to other parts of the United States.

Limitations Impacting Family Members

While the spouses and children of H-1B visa holders may apply for H-4 status to reside legally in the United States, in most cases, spouses are not eligible to work. Moreover, when children of H-1B holders reach the age of 21, they must either seek an independent basis for legal immigration status in the U.S., or leave the country.

What Are the Benefits of the EB-5 Program Over the H-1B Program?

Unlike the H-1B program, the EB-5 program has virtually no limitations. For those seeking a direct path to U.S. permanent residency, the EB-5 program offers the following key advantages:

• There are no duration of stay limitations. Individuals already in the United States when they apply for EB-5 status are free to remain in the U.S. until their applications are approved. Furthermore, after two years of conditional residency, EB-5 visa holders may apply for unconditional permanent resident status, and may subsequently apply for U.S. citizenship if desired.
• Visas are often available in all EB-5 eligibility categories, particularly for those applicants open to investing in a targeted employment area.
• The EB-5 process is straightforward; there is no lottery system involved.
• Employment sponsorship is not required. Individuals in EB-5 status do not need to find an employer to sponsor them, nor are they tied to any particular employer. Immigrant investors are free to advance their careers in any way they choose, and may live anywhere in the United States that they desire.
• EB-5 green card holders, including spouses and unmarried children under the age of 21, are free to work and study anywhere in the United States, without having to apply for any special permissions. Furthermore, when children obtain permanent residency status through their investor parents, their status is not impacted when they turn 21.
• Significant new benefits were introduced with the EB-5 Reform and Integrity Act of 2022 (RIA). Under this legislation, individuals in valid nonimmigrant visa status at the time that they file their EB-5 petition can remain in the U.S. while waiting for their EB-5 applications to be approved. They can also apply for work and travel permits at the same time. Current F-1 visa holders, for instance, should carefully consider this benefit when deciding whether to pursue H-1B vs EB-5 status.

While the EB-5 program offers numerous benefits and opportunities for investors and their families, the program does involve a significant financial investment, and processing times can be lengthy depending on the visa category. For this reason, consulting with experienced industry experts or an immigration attorney is recommended.

Is an EB-5 Visa the Right Choice for You?

Every person pursuing U.S. immigration status has their own unique needs, resources, and goals. When evaluating different immigration alternatives, it is critical to consult with experts in the field who are highly knowledgeable about the different visa options, as well as the intricacies associated with each.

EB5AN has helped more than 2,300 families from 60 countries relocate to the United States as lawful permanent residents. For additional information on the differences between the EB-5 and H-1B visas, you can schedule a one-on-one call with our expert team today.

One of the most significant changes to the EB-5 Immigrant Investor Program following the enactment of the EB-5 Reform and Integrity Act (RIA) of 2022 was that individuals present in the United States who hold other types of visas became eligible for EB-5 concurrent filing, through which immigrant investors can submit Form I-526 and Form I-485 simultaneously.

As a result, prospective EB-5 investors can apply for the program and go through the interview process while continuing to work in the United States under a different non-immigrant visa, thereby significantly streamlining the application process.

In this article, we will discuss the benefits EB-5 concurrent filing presents by accelerating investors’ transition to permanent resident status.

What Is EB-5 Concurrent Filing?

EB-5 concurrent filing is the act of submitting both Form I-526/I-526E and Form I-485 to U.S. Citizenship and Immigration Services (USCIS) at the same time. Concurrent filing of these two petitions allows eligible EB-5 investors who are already present in the United States to accelerate the process of obtaining a Green Card.

However, foreign nationals must meet certain eligibility criteria to be able to submit these two forms simultaneously. It is recommended that EB-5 investors seek legal guidance and advice from experienced immigration professionals to navigate the EB5 concurrent filing process most effectively and efficiently.

What Is Form I-526/I-526E?

One of the very first steps in the typical EB-5 application process is submitting Form I-526/I-526E to USCIS. If, like the vast majority of EB-5 program applicants do, the foreign national made their investment via a regional center, then they must submit Form I-526E.

Form I-526/I-526E is used by immigrant investors to demonstrate their eligibility for the EB-5 program, and must include key information about the individual’s chosen investment project.

An I-526 or I-526E petition should include:

• The applicant’s full name, date of birth, country of birth, and current address.
• An explanation of how the applicant’s investment in a new commercial enterprise (NCE) will meet EB-5 program requirements, specifically how it will create at least 10 full-time jobs for U.S. workers.
• A comprehensive business plan pertaining to their NCE investment.
• Information showing the lawful source of their NCE investment funds.
• Financial and bank statements, property records, tax returns, and more supporting documentation.

What Is Form I-485?

Typically, after USCIS has approved an EB-5 investor’s I-526/I-526E form, they become eligible to obtain conditional permanent resident status. To do so, EB-5 investors already living in the United States must submit Form I-485 to USCIS, while applicants living outside the United States submit Form DS-260 and then attend a visa interview at the U.S. embassy or consulate in their home country.

Once this petition is approved, an applicant’s conditional EB-5 Permanent Resident Card remains valid for two years, allowing the investor, their spouse, and their dependent family members to live in the United States.

Why EB-5 Concurrent Filing Presents Such a Considerable Advantage to Immigrant Investors

EB-5 concurrent filing benefits immigrant investors in several ways, including:

1. Streamlining the EB-5 Application Process

Perhaps the most significant benefit that EB-5 concurrent filing provides to immigrant investors is making the process significantly more efficient. Filing and gaining approval of Forms I-526/I-526E and Form I-485 can be extremely time-consuming. As of the most updated data provided by USCIS, 80% of I-526/I-526E petitions are processed within 55.5 months, and within 88 months for applicants from China.

Processing times for Form I-485 can be difficult to predict because it can vary depending on a wide range of factors, including the applicant’s form category, USCIS workload, and the specific field office or service center where the application is being processed. The most up-to-date estimates are available on the USCIS website. EB-5 investors can typically expect the wait time for processing an I-485 petition to be around a year, but it can be much longer.

Because of the unpredictability and often lengthy processing times for Forms I-526/I-526E and I-485, the prospect of combining these two processes into one with concurrent filing—and thereby significantly shortening the wait time for obtaining a conditional permanent residence—is appealing to EB-5 investors.

2. Avoiding Consular Processing

In addition to the time that EB-5 concurrent filing saves immigrant investors by allowing them to file Forms I-526/I-526E and Form I-485 simultaneously, individuals may also be able to save more time by avoiding consular processing. By filing Form I-485 at the same time while in the United States, EB-5 investors may be able to avoid the need for consular processing in their home country, which can often involve additional delays.

3. Providing Earlier Work and Travel Authorization

EB-5 concurrent filing allows immigrant investors to potentially become eligible for work authorization and travel permits while their applications are pending, thereby allowing them to work and travel during the adjudication process. Typically, applicants would need to wait for their Form I-526/I-526E to be processed, and then file Form I-485 to enjoy this privilege, but EB-5 concurrent filing provides investors with this important level of freedom and flexibility right away.

4. Potentially Providing Significant Cost Savings to EB-5 Investors

EB-5 concurrent filing can provide substantial cost savings to investors by combining the filing of Form I-526/I-526E and Form I-485. Typically, the application fee for Form I-526 is more than $3,500 (subject to a price increase to $11,160 as of April 2024) while the application fee for Form I-485 is more than $1,000.

Applicants also generally incur legal fees and other associated costs to make sure that they provide the necessary documentation at each step of the process. By combining these two critical steps into one, EB-5 concurrent filing has the potential to save immigrant investors thousands of dollars in fees.

5. Speeding Up the Transition to EB-5 Permanent Residency

Ultimately, EB-5 concurrent filing accelerates the transition to EB-5 permanent resident status in the United States, granting immigrant investors earlier access to all of the benefits enjoyed by Green Card holders.

Who Is Eligible for EB-5 Concurrent Filing?

EB-5 concurrent filing is available to individuals living in the United States on non-immigrant visas who are eligible for adjustment of status to lawful permanent resident status (e.g., individuals on H-1B or L-1 visas). It is recommended that individuals on B-1 and B-2 tourist visas, TN visas, E-2 visas, and O-1 visas wait 90 days before attempting to adjust status.

Individuals are also not eligible for EB-5 concurrent filing if their home country is subject to visa retrogression—that is, when the demand for visas from a particular country exceeds the annual quota set by the U.S. government. When visa retrogression occurs, the priority dates for certain immigrant visa categories move backward, causing delays for applicants from those countries.

What Are the Main Steps in the Process of EB-5 Concurrent Filing?

The step-by-step process of EB-5 concurrent filing includes:

1. Prepare, Complete, and Submit Form I-526/I-526E And Form I-485

As outlined above, EB-5 investors eligible for concurrent filing must gather all necessary documentation for Form I-526/I-526E, including their personal information and details pertaining to their investment, and their source of funds, in addition to bank statements, property records, tax returns, and more supporting documentation.

EB-5 program applicants must also complete Form I-485 with their personal information, immigration history, and more required details. When both forms are complete and all supporting documentation is assembled, the two forms are submitted together to USCIS.

It is highly recommended that individuals seek professional guidance to ensure that they submit all of the required information. Failure to do so can result in significant delays or a rejected application.

2. Submit Form I-131 and Form I-765 If Necessary

After submitting Form I-526/I-526E and Form I-485 to USCIS, EB-5 investors may submit Form I-131 (for advance parole document) to apply for permission to travel internationally.

Individuals on employment-based visas can continue working in the United States as long as their work visa remains valid. Otherwise, immigrant investors may submit Form I-765 (for employment authorization document) to request permission to work legally in the United States while awaiting the decision from USCIS.

3. Attend Biometrics Appointment

After USCIS receives an applicant’s concurrently filed Form I-526/I-526E and Form I-485, they will schedule a biometrics appointment, during which the applicant will provide fingerprints, photographs, and other information typically required for criminal background checks.

4. Attend Interview If Necessary

After USCIS receives an applicant’s concurrently filed Form I-526/I-526E and Form I-485, they may also schedule an interview to further assess the applicant’s eligibility for the EB-5 program. During the interview, applicants may be asked to provide additional information about their investment project, their source of funds, and more. It is highly recommended that EB-5 immigrant investors seek guidance from an immigration attorney for this step in the process.

5. Await USCIS Decision and Receive Conditional Green Card

After Form I-526/I-526E and Form I-485 are successfully processed, USCIS will make a decision on whether to grant the applicant conditional permanent resident status, which allows them (as well as their spouse and qualifying dependents) to live and work in the United States for two years.

6. Submit Form I-829

Once the EB-5 investor reaches the final 90-day period before their conditional Green Card is set to expire, they must submit Form I-829 to USCIS, providing the required evidence that they have met all conditions of the EB-5 program and requesting the removal of conditions on their permanent resident status.

EB5AN Can Help You Get Started with EB-5 Concurrent Filing

In allowing for EB-5 concurrent filing of Form I-526/I-526E and Form I-485, the EB-5 Reform and Integrity Act (RIA) of 2022 presented a unique opportunity to speed up the process of obtaining permanent resident status in the United States via the EB-5 program.

Still, legal and professional guidance is crucial for successfully navigating the process. EB5AN has helped more than 2,300 families from 60 countries relocate to the United States as lawful permanent residents. Our expert team has more than a decade of experience, and offers clients first-rate, low-risk EB-5 regional center projects with 100% USCIS project approval rate to date.

For help answering your questions about EB-5 concurrent filing, or to get started on your EB-5 journey, schedule a free consultation with our EB-5 team. To learn more about our available EB-5 projects, click here.

Once they are eligible, foreign nationals can file Form I-485 to adjust their immigration status and gain lawful permanent residency in the United States.

However, processing times can be long and unpredictable. Delays can affect investors’ immigration plans. With a focus on the EB-5 Immigrant Investor Program, this article explains what you should expect when submitting your I-485 and how to reduce your processing time.

Regardless of whether you’re an EB-5 investor or not, by reading this article, you will learn more about Form I-485.

We will cover why Form I-485 is important, how long it takes to process, and what EB5AN can do to help applicants obtain U.S. Green Cards under the EB-5 program.

Key Points to Remember About I-485 Processing

• Foreign nationals and their qualified immediate relatives should file Form I-485 once they have met eligibility requirements to receive conditional permanent resident status in the United States.
• I-485 processing times vary depending on individual circumstances, immigration officials’ workloads, and other factors, but expect the process to take several months at least.
• EB-5 investors can minimize I-485 processing delays by following instructions carefully, filling out all paperwork completely and accurately, and working with EB5AN and an experienced immigration attorney, among other steps.

What Is Form I-485?

Qualified individuals who live in the United States on temporary visas may wish to change their immigration status to lawful permanent resident. To do so, they must file Form I-485, Application to Register Permanent Residence or Adjust Status. This is also known as an application for adjustment of status.

EB-5 investors who are already physically present in the United States and partway through the EB-5 application process may submit this form to gain conditional permanent residency. Approval of this form makes them U.S. Green Card holders. They continue to live, work, and travel in the United States while fulfilling the EB-5 program’s requirements.

The investor’s entire family, including the EB-5 principal applicant, their spouse, and unmarried children under 21 years old, can obtain permanent residence. Each family member must submit their own Form I-485 to receive Green Cards and become conditional permanent residents of the United States.

It’s important to note that EB-5 applicants who are outside of the United States are not eligible to submit Form I-485. Instead, they must file Form DS-260 and complete consular processing before they can travel to the United States. Read our guide to DS-260 applications to learn more about that.

How Long Does It Take to Process Form I-485?

Unfortunately, an I-485 petitioner cannot expect their I-485 application to be processed by a set date. Processing times vary.

Between FY 2019 and FY 2023, the median processing time for decisions on employment-based I-485s dropped from 10 months to 8.6 months. This estimate may change again by the time you read this.

For the latest figures, consult the United States Citizenship and Immigration Services Historical National Median Processing Time page.

Factors That Affect Processing Times

These are some of the main things that can affect how long it takes for an I-485 petition to be adjudicated:

• Immigrant category.
• Processing center.
• USCIS workload.
• Eligibility of applicant.
• Problems with investor’s submission.

Let’s take a closer look at each of these issues.

Immigrant Category

Not all I-485 applicants file under the same category. One applicant may be an EB-5 investor, while another may have been granted refugee status. Some immigration categories may result in greater scrutiny from the United States Citizenship and Immigration Services (USCIS). This additional attention can lengthen the processing time.

Processing Center

One of the key factors affecting I-485 processing times is the applicant’s local USCIS field office or service center. Staffing levels change. Not every USCIS field office or USCIS service center takes the same amount of time to adjudicate an I-485 application.

USCIS Workload

A variety of issues—such as the volume of applications, changes in rules and regulations, priorities, and immigration policies—can affect the workloads of USCIS field offices. These can also affect when applicant interviews can be scheduled and conducted. As workloads change, so too can I-485 processing times.

Eligibility of Applicant

Not all foreign nationals are eligible to apply for adjustment of status. Those who fall under certain grounds of inadmissibility, as addressed in the Immigration and Nationality Act, are ineligible. These categories include:

• Medical.
• Criminal.
• National Security.
• Fraud.

The adjudication process can also involve background checks, which can take additional time.

Problems with Investor’s Submission

Immigration officials may have follow-up questions or require petitioners to supply additional documentation. This is more likely to happen if applicants make mistakes in filling out their form or omit important information.

Petitioners must prepare and fill out their paperwork carefully to avoid delays or rejection.

An I-485 applicant might encounter any combination of these factors, making it difficult to predict when their application will be adjudicated. Once the decision is made, USCIS will notify applicants by email or physical mail to indicate the application has been processed.

What Is the I-485 Timeline

Filing Form I-485 is just one part of the EB-5 immigration process. It is essential for EB-5 investors to understand how Form I-485 fits into it.

These are the main steps before, during, and after I-485 submission:

1. Confirm visa availability.
2. Compile essential documents.
3. File Form I-485 concurrently with Form I-526 or I-526E.
4. Save receipt notice.
5. Participate in a biometrics appointment and interview (unless waived).
6. Get Employment Authorization Document and travel permit.
7. Get Green Card(s).
8. File Form I-829.
9. Apply for U.S. citizenship.

Let’s explore each step in more detail.

1. Confirm Visa Availability

First, a foreign national must confirm that a visa is available in their immigration category. The time needed to complete this step will vary depending on your individual circumstances.

Study the State Department’s Visa Bulletin, found here. If a visa is available, file Form I-485 using the listed “date for filing.” If one is not available, use the listed “final action date.”

In addition, do the following:

• Look up your visa type in the first column of the corresponding chart (“employment-based” if you are an EB-5 investor).
• Look up the corresponding date under the country you are from.
• File the adjustment of status form if the chart says “C,” for current.

2. Compile Essential Documents

You must provide a great deal of evidence and many supporting documents to get approval from USCIS of your Form I-485. The time needed to complete this step will vary depending on your individual circumstances. Evidence required includes:

1. Proof of eligibility: If you file Form I-485 concurrently with your I-526/I-526E immigrant petition, include a copy of the I-526/I-526E. If you do not engage in concurrent filing, include a copy of Form I-797, Approval or Receipt Notice.

This is USCIS’ official acknowledgment of the immigrant petition. Either document demonstrates that the individual can apply for adjustment of status.

2. Personal records: Copies of your birth certificate, marriage certificate (if you are married), and divorce certificate (if you are divorced).

3. Photos: Two identical, passport-style color photos that were taken less than 30 days prior to your I-485 submission date.

4. Passport and immigration documents: Copies of your complete passport (or another government-issued identity document) and paperwork that shows you were inspected by an immigration officer and admitted or paroled into the United States.

5. Criminal history records: Documentation of your criminal history, if applicable.

6. Medical records: Your vaccination records and medical evaluations.

7. Biographic information: Each of your eligible family members should complete and file Form I-130, Petition for Alien Relative.

You must also include the correct filing fee. The amount is $1,440 (including biometric services), effective April 1, 2024.

USCIS will reject any application filed on or after this date if the updated fee is not enclosed.

3. File Form I-485 Concurrently with Form I-526E

To save time, it’s a good idea to file Form I-485 and Form I-526/I-526E concurrently. There is no need to wait for USCIS to receive or approve the I-526/I-526E. If filing based on an approved or pending I-526E, include a copy of your receipt notice with your Form I-485 submission.

An EB-5 investor should send Form I-485 to the appropriate filing location. This is a USCIS lockbox, which collects documents and filing fees.

Review the list of USCIS direct addresses for the latest guidance before mailing.

4. Save Receipt Notice

Within one month of filing Form I-485, USCIS should send you an acknowledgment—Form I-797C, Notice of Action—that it has received your application. This will include a 10-digit number. Save a copy of this receipt notice and use the number to track the status of your case.

An approval notification means you will receive a conditional Green Card, can stay in the United States legally, and can proceed to the next step of the EB-5 process. A rejection notification—prompted by mistakes or omissions in your form—will delay your I-485 processing time.

Tens of thousands of I-485 applications are rejected each year. Fill out your form with care so yours is not one of them.

5. Participate in a Biometrics Appointment and Interview

Within a few months of filing Form I-485, USCIS should contact you to set up your biometrics appointment. USCIS will notify you of the location, date, and time. It is best to accept the date and time offered if at all possible, to avoid a potentially time-consuming effort to reschedule.

You will have to bring a government-issued ID to enter the USCIS facility. At your appointment, expect to have your fingerprints, photo, and signature taken.

6. Apply for EAD and Travel Permit

EB-5 applicants can still work and travel while their I-485 petitions are pending, but they must first have additional applications approved to avoid being disqualified.

To work for an employer who requires a work permit, submit file Form I-765, Application for Employment Authorization. Submitting Form I-765 means you can get an Employment Authorization Document (EAD).

After your I-485 is approved, you no longer require an EAD to work in the United States. The Green Card itself provides employment authorization.

To travel, file Form I-131, Application for Travel Document to USCIS. Approval means to receive advance parole and may travel outside the United States temporarily.

Within a few months of filing Form I-485, you can expect to receive a decision on your EAD. A decision on an advance parole travel document may take several months.

7. Get Green Card(s)

The I-485 is approved after USCIS determines the applicant has met all I-485 requirements and the U.S. Department of State assigns an immigrant visa.

Permanent Resident Cards (Green Cards) should arrive in the mail a few weeks later.

With their I-485 approved, an EB-5 investor has conditional permanent resident status for up to two years.

The investor should submit an I-829 petition during the last 90 days of this time frame to remove conditions and become a lawful permanent resident of the United States.

8. File Form I-829

To get unconditional permanent residency, the investor files an I-829 petition, which proves the investment complied with the EB-5 program.

Once the investor’s I-829 petition is approved, the investor, their spouse, and any unmarried children under the age of 21 gain lawful permanent resident status. All conditions are removed at this time.

9. Decide Whether to Apply for U.S. Citizenship

After EB-5 investors have been Green Card holders for five years, they can apply for U.S. citizenship. Many choose to do so. Full citizenship confers additional pluses, such as voting rights, eligibility for U.S. passports, and the chance to receive benefits from government programs like Medicare and Social Security.

U.S. citizenship also comes with additional responsibilities, such as exclusive allegiance to the United States, following U.S. laws, and possible jury duty service.

Applying for citizenship under these circumstances is called the naturalization process. A qualified foreign national must file Form N-400, Application for Naturalization, for USCIS approval, among other things.

Applicants should expect this process to take six months or longer.

How Can Investors Speed Up I-485 Processing?

Investors must take care to fill out their I-485s completely and accurately, to avoid mistakes and questions that could lengthen their processing time.

USCIS sometimes denies applications that are not filled out correctly. In most cases, these decisions cannot be appealed.

Here are some of the things you can do to get approved the first time you apply with minimal delay.

• Fulfill all eligibility requirements for adjustment of status.
• Use the most recent version of Form I-485.
• Familiarize yourself with and follow the filing instructions.
• Answer all application questions fully and correctly.
• Type your responses or write them out using a black pen.
• Enclose all supporting documentation and the filing fee.
• Review this checklist of evidence from USCIS.
• Provide photos consistent with the requirements outlined in the form instructions.
• Consult with a qualified immigration lawyer when drafting and filing Form I-485.
• Fill out and enclose Form I-693, Report of Immigration Medical Examination and Vaccination Record.
• Submit Form I-485 and Form I-526/I-526E concurrently.
• Reply to all questions from USCIS quickly.

Request Expedited Processing from the USCIS Contact Center

EB-5 investors may request expedited processing of their I-485 applications by getting in touch with the USCIS Contact Center.

Call them at 800-375-5283 (from inside the United States) or 212-620-3418 (from outside the United States). Their webpage also offers many online tools.

USCIS is selective in considering expedite requests, and could ask for supplementary information.

Choose EB5AN for the Best Chance of Success

Submitting Form I-485 is an important part of the EB-5 visa process, but prospective investors should familiarize themselves with all aspects of the EB-5 journey.

You’ll need help from an industry leader for the best chance of securing immigrant visas for yourself and family members.

EB5AN has helped thousands of clients from all over the world become Green Card holders. With a 100% USCIS project approval rate, our expert team can help you with everything from filing petitions to finding top-notch regional center projects.

Book a free consultation with us to learn more.

A writ of mandamus is an order from a court compelling a lower government body to perform an act that it has a clear duty to perform. In the context of the EB-5 process, a writ of mandamus can be an effective tool in moving forward an EB-5 case that is experiencing extensive delays.

In this article, we will take a closer look at the EB-5 application process, its timeline and potential delays, as well as what solutions EB5 investors can turn to, including a writ of mandamus.

 

The EB-5 Program

The EB-5 program, also known as the Immigrant Investor Program, provides a way for eligible investors, their spouses, and unmarried children under the age of 21 to obtain U.S. permanent residency status (informally known as a Green Card).

The EB-5 program was established in 1990 by the United States Congress as a way to encourage investment in the U.S. economy. The program requires that investors meet certain criteria, make a significant capital investment in a U.S. venture and, through that venture, create at least 10 full-time, permanent jobs for U.S. workers.

The EB-5 visa program has undergone various changes throughout the years. As it stands today, an investor can either make a direct investment in a business that they will own and operate, or they can invest in a government-approved EB-5 regional center.

Regional centers are business organizations designated by USCIS to sponsor various EB-5 investment projects. Regional centers gather funds from multiple investors and manage both the projects and the job creation process.

If an investment is made in a high unemployment or rural area, also known as a targeted employment area (TEA), the minimum EB-5 investment amount is $800,000. If the investment is made in any other region of the U.S., the minimum investment amount is $1,050,000.

The EB-5 program has numerous benefits, including the fact that no employment offer or other type of sponsorship is needed, and that the investor and their family have the freedom to live anywhere in the United States that they choose.

How to Apply for EB-5 Status

Invest in a Reliable EB-5 Project

The first step in the EB5 process is for the investor to find a suitable investment project that is compliant with all EB-5 requirements. Once the project is selected, the applicant must invest the required amount of capital in the project. When the investment is made, an I-526 or I-526E application is filed with the United States Citizenship and Immigration Services (USCIS). The I-526E application includes documentation of the investment, a business plan, a job creation plan and proof of lawful source of funds.

As of March 2024, the USCIS-published processing time for I-526 petitions is 55.5 months. While these published processing times are useful for planning purposes, actual processing times often vary.

Receive Conditional Green Card

Following the approval of an I-526E petition, the investor and their qualifying family members receive conditional permanent resident status for a period of two years. Toward the conclusion of the two-year period, the investor files an I-829 petition.

Remove Conditions and Become a Permanent Resident

The purpose of the I-829 is to provide USCIS with evidence that the investor’s project has met all program requirements during the initial two-year period. Processing times for I-829 petitions can vary on a case-to-case basis, but petitioners’ conditional permanent residency is extended during the processing period.

Finally, as a last step in the process, many EB-5 investors choose to apply for United States citizenship.

EB-5 Application Delays and How to Address Them

While the EB-5 program provides one of the most direct pathways to U.S. permanent residency, extensive processing times, at either the I-526 or I-829 stages, often pose significant challenges for investors. Fortunately, there are steps which, while limited, an investor can take to address potential case processing delays.

Prepare Your Application Carefully

Given the length of the EB5 application process, foreign nationals are encouraged to move steadily forward with the preparation of their petition and to avoid delays in filing their applications.

To avoid requests for evidence, applicants should also ensure that all submitted documents are accurate and complete.

To ensure the best results, investors should remain informed of changes to EB-5 regulations and processing times. Detailed records should also be kept of the application process and of all steps taken to communicate with USCIS. If delays occur, this approach will make it simpler to address and resolve issues.

Know Your Rights

USCIS provides an e-Request tool that allows applicants to inquire about applications and petitions that are outside normal processing times.

Applicants can also engage the Office of the Citizenship and Immigration Services Ombudsman, who serves as a bridge between USCIS and individuals applying for immigration benefits. Although the Ombudsman does not have the authority to change USCIS decisions or enforce policies, it can provide assistance in complex cases and facilitate communication.

It can sometimes be effective to solicit the assistance of a congressperson or senator to inquire about the status of a delayed petition. Congressional offices often have communication channels available to them that are not directly available to applicants.

Engage with the EB-5 Community

Joining EB-5 investor forums and platforms can provide support and up-to-date information. These groups may also organize to address broader issues within the EB-5 program.

On the other hand, hiring an immigration attorney or experienced industry professionals who specialize in EB5 petitions is highly recommended. Their expertise can be invaluable in navigating the intricacies of the EB-5 process and in resolving issues.

Writ of Mandamus as a Last Resort

As a recourse of last resort, investors experiencing unreasonable delays in the processing of their EB-5 petitions may consider filing a writ of mandamus in U.S. federal court. As noted above, a writ of mandamus is an order from a superior court compelling a government agency to act. In the EB-5 immigration law context, a writ of mandamus will compel USCIS to take action on a delayed EB-5 petition.

When taking mandamus action, a petitioner must establish that the delay is unreasonable. They must also establish that the delay is causing them undue hardship, that they have exhausted all other possible remedies, and that no other adequate remedy is available.

It is important to note that while a writ of mandamus lawsuit can force USCIS to take action, it cannot order the agency to rule in any particular way on any given application. In other words, filing a writ of mandamus does not ask a federal court to make a decision on an EB-5 application; rather, it only pushes USCIS to take action. The action taken by USCIS will then be an approval, a denial, or a request for additional evidence.

Although recent landmark court decisions have ruled in favor of petitioners and against government agencies (USCIS) in EB-5 mandamus lawsuit situations, extensive delays still persist. Moreover, taking mandamus action is not recommended under all circumstances.

Risks of Taking Mandamus Action

USCIS processing delays can actually benefit the children of applicants if the children are nearing the age of 21. This is because there are mechanisms in place under U.S. immigration law where an applicant’s eligibility age may be extended if USCIS was responsible for delayed processing times.

Additionally, filing a writ of mandamus is usually not recommended if there are issues regarding the investor’s EB-5 project, such as a lack of progress by the job-creating entity, or problems in the investor’s immigration case like history of visa violations or source of funds issues. It would also not be advisable for investors from countries with visa backlogs, such as China or India, to pay the high costs associated with filing a writ of mandamus if a visa would not be available to them at the time that their expedited case was decided by USCIS.

If there are problems involved with the petition, there is always the possibility that filing a writ of mandamus will only serve to expedite what is going to be a negative decision.

Seek Professional Assistance

Although filing a writ of mandamus can be a highly effective tool in propelling a stalled immigration case forward, it is often considered the remedy of last resort because of the high costs involved, and because a successful outcome is not guaranteed. When considering a mandamus lawsuit, it is highly recommended to work with an experienced EB-5 immigration attorney. An attorney specializing in this area will be able to successfully determine whether it is in an applicant’s best interest to pursue a writ of mandamus.

For additional information on filing an EB-5 petition and navigating potential EB-5 processing delays, please book a free call with EB5AN.