The Department of State (DOS) has released the Visa Bulletin for March 2022. Interestingly, no changes have been made to the cutoff dates for EB-5 investors since the December 2021 Visa Bulletin. Since all direct investors, including those from China, are allowed to receive their two-year EB-5 visas once they are documentarily qualified, the popularity of direct EB-5 investment projects may increase even more.

The DOS had cleared the processing backlogs for Chinese direct EB-5 investors, and there is still no indication that the agency plans on bringing back cutoff dates. Therefore, the direct EB-5 investment model has received a notable boost. This investment type now seems more stable and reliable than regional center investment; it is also possible that future processing backlogs will not apply to I-526 petitions associated with direct EB-5 businesses. Should the regional center program be reauthorized (potentially in a March 11, 2022 appropriations bill), it is unclear if the DOS will make any changes.

The Final Action Dates and Dates for Filing

Countries experiencing backlogs in EB-5 visa petition processing can be subject to two kinds of cutoff dates: a final action or a date for filing. Chart A of each Visa Bulletin shows which countries are subject to final action dates; in this case, all direct EB-5 investors enjoy current status. This means that, as soon as their I-526 petitions are approved, direct investors can receive their conditional residency visas.

Regional center investors with pending I-526 petitions are in a very different situation: due to the regional center program’s expiration on June 30, 2021, United States Citizenship and Immigration Services (USCIS) no longer adjudicates I-526 applications associated with regional centers. The regional center row is thus marked as “Unauthorized.”

Chart B of the Visa Bulletins contains the date for filing—the date at which investors from backlogged countries can apply for their two-year visas. Even though all direct investors as marked as “Current”, regional center investors from China are still shown to have a date for filing of December 15, 2015.

The March 2022 Visa Bulletin has been published at a crucial time in the EB5 investment industry’s history. In only a few days or weeks, major changes could be made to EB-5 policies. Even though it is unclear what these changes will entail for the cutoff dates, it is very likely that direct EB-5 investment offerings will remain popular.

As of February 10, 2022, the EB-5 investment industry is at a watershed period in its history. With more than seven months since the expiration of the regional center program, the industry is now looking to Congress to pass EB-5 reform in an upcoming appropriations bill. The spending bill, which was originally due in December 2021, has been postponed, and there was at first no indication that it would address the issues in the EB-5 program.

However, on February 3, 2022, a draft of a potential EB-5 bill was leaked, leading to speculation that EB-5 reform would indeed be forthcoming. The leaked draft would reauthorize the regional center program until 2027 and introduce measures to ensure integrity and transparency in EB-5 offerings. These adjustments, along with new criteria for targeted employment area (TEA) designation, would be widely well-received.

The bill also raises the minimum EB-5 investment threshold from only $500,000 to $700,000. This substantial increase would make the EB-5 visa significantly less accessible to foreign nationals. What is more, any foreign nationals planning to make an EB-5 investment at $500,000 now have to act quickly: it may be only a few more days or weeks before these changes are made in the upcoming appropriations bill.

The following is a concise overview of the EB-5 investment process meant to help interested foreign nationals get started as quickly as possible.

Preparing the EB-5 Investment Funds

The first step is to retain an immigration attorney with ample EB-5 experience. The more EB-5 investors an attorney has worked with successfully, the more reliable they will be.

One of the most important factors that foreign nationals must consider is that all EB-5 capital is examined by United States Citizenship and Immigration Services (USCIS) to ensure its legality. The agency does allow investors to use virtually any lawful source of funds, but it requires copious evidence tracing the funds back to their source. This is typically one of the most challenging aspects of the EB-5 process, and investors are thus advised to prepare the source-of-funds documentation as early as possible. Sources of funds such as salary payments and secured bank loans can be easier to document when compared to inherited or gifted capital.

USCIS also requires EB-5 funding to remain at risk—there can be no contractual rights to repayment, and EB-5 investors must acknowledge the possibility of substantial financial losses. Moreover, the reduced investment amount of $500,000 only applies to EB-5 businesses in TEAs—all other offerings require a minimum investment of $1,000,000.

Choosing the Right EB-5 Offering

It is crucial to select an EB-5 offering that fulfills all USCIS criteria. The best EB-5 projects are careful to follow USCIS guidelines and thus make it more likely for their investors to receive permanent residency. One of the foremost requirements is for each EB-5 investment to create at least 10 jobs. In the direct EB-5 model, which is currently the sole investment option, all of these positions must be W-2 jobs that are preserved for at least two years and employ authorized U.S. workers. Investors should look for projects that aim to create more than 10 jobs per EB-5 investor.

Foreign nationals also need to evaluate an EB-5 project’s chances of succeeding financially. EB-5 capital should be a relatively small portion of the total capital structure, and the project’s operator should have a reliable track record.

The $500,000 Threshold May Be Raised Soon

It remains unclear exactly when EB-5 reform will come about, and Congress may not include changes to the EB-5 program in the upcoming appropriations bill. However, the EB5 investment thresholds are still likely to rise in the near future, and foreign nationals who cannot afford to invest more than $500,000 may only have a few days or weeks left to begin the EB-5 process.

Foreign nationals who dream of relocating to the United States, U.S. business owners, immigration attorneys, and many other individuals have benefitted from the remarkable success of the EB-5 industry, especially since the 2008 financial crisis made more apparent the need for a reliable source of funding. Indeed, since EB-5 capital is frequently available at below-market rates, it has helped thousands of businesses and real estate development projects succeed. What is more, United States Citizenship and Immigration Services (USCIS) requires every EB-5 investor to create at least 10 jobs through their capital. This criterion is one of the cornerstones of the EB-5 investment industry, and it has resulted in reduced unemployment in many areas across the country.

The EB-5 process is also characterized for being relatively straightforward, and USCIS is transparent when adjudicating EB-5 visa applications. Investors who are careful to comply with the applicable regulations can be confident that they will receive USCIS approval, and thousands of foreign nationals are now enjoying U.S. permanent residency, and even citizenship.

However, the second half of 2021 and the start of 2022 has been a watershed period for the EB-5 program. For more than seven months, the regional center EB5 investment model, once the most popular investment type, has been defunct. What have been the consequences of this prolonged lapse?

Economic Funding Put on Hold

According to a report by Invest in the USA (IIUSA), a trade association for the EB-5 industry, the expiration of the regional center program has put approximately $15 billion in investment funding at risk. This is surely an unconscionable amount of capital to go to waste only because Congress failed to reach an agreement on EB-5 reform. U.S. businesses may need EB-5 funding more than ever due to the volatile economic environment caused by COVID-19.

At the same time, USCIS is no longer processing I-526 visa petitions from regional center investors. If these investors try to get their capital back from their regional center projects, all of the valuable funding may be lost. It is important to note that there is no guarantee that the regional center program will be reauthorized, even though that scenario seems increasingly possible. In addition, USCIS could choose to deny all pending I-526 petitions from regional centers, but the agency is unlikely to take such a drastic measure.

Job Creation Is At Risk

IIUSA estimates that about 487,000 jobs that would be created by regional center investors are now at risk. It is also worth noting that regional center-sponsored projects are allowed to count standard W-2 positions as well as indirect and induced employment. These last two types of jobs are a result of the EB-5 funding’s positive economic impact on the community, so entire areas may lose out on economic development and job creation.

An Unfair Situation for investors

The thousands of foreign nationals who have invested in regional center projects but now find that USCIS has placed them in processing limbo may understandably feel frustrated. In many cases, the EB-5 investment may have represented the entirety of a family’s life savings; investors who complied with USCIS regulations should be allowed to proceed with the EB-5 process. To this end, the U.S. government should enact a provision for regional center investors, enabling them to have their I-526 petitions adjudicated even if the program is still lapsed. Of course, a complete, long-term reauthorization of the regional center program would be the optimal solution, but a grandfathering clause may be even more urgent.

It is clear that Congress should address the lapse of the EB-5 Regional Center Program as quickly as possible. Foreign investors and U.S. businesses should not be deprived of their respective rights to a visa and to investment funding.

Despite the wide variety of views on the EB-5 program, most industry members would certainly agree on one point: the EB-5 investment industry needs significant reform. For example, the more than six-month-long suspension of the regional center program has been detrimental to many projects and investors. In fact, since United States Citizenship and Immigration Services (USCIS) is no longer able to adjudicate I-526 petitions from regional center investors, these foreign nationals could eventually try to get their invested capital back. Attempts to do so through litigation could be disastrous for regional center-sponsored projects and would deprive the U.S. economy of millions of dollars of funding.

In mid-2021, EB-5 policies underwent another major overhaul: a district court determined that the EB-5 Modernization Rule, a controversial set of new EB-5 regulations, had been implemented unlawfully by the Department of Homeland Security (DHS). Consequently, all the changes made by the Modernization Rule were reversed to the relief of many EB-5 industry members. Since the court ruling, EB-5 businesses in targeted employment areas (TEAs) have been authorized to accept investments of only $500,000. However, it remained unclear if the DHS or USCIS would successfully bring back these regulations—both agencies went as far as to file an appeal against the court decision.

Now, it seems that these two crucial issues in the EB-5 investment industry will finally be solved. The recent leak of a potential EB-5 bill may reveal what changes will be made by Congress in the upcoming weeks.

Potential Changes to the EB-5 Program

The new EB5 investment thresholds may become $700,000 for TEA projects and $850,000 for non-TEA offerings. Even though this minimum amount for TEA projects is not as high as the Modernization Rule-threshold of $900,000, it still represents a significant increase. For any foreign nationals planning to make an EB-5 investment of only $500,000, now may be the last opportunity to find an EB-5 offering and subscribe. All EB-5 projects must be direct for the time being, and several suitable offerings are currently available.

On the other hand, the potential EB-5 bill also reauthorizes the regional center program through 2027. This is likely the most important and urgent change to be made to EB-5 policies. Even if Congress does not pass legislation reauthorizing the regional center program, measures need to be taken to grandfather in regional center investors with pending I-526 petitions. These investors, who subscribed to EB-5 offerings in good faith and complied with the applicable regulations, should be given a chance to continue with the EB-5 process. Failure to make provisions for these individuals would reflect poorly on the EB-5 program.

The coming weeks will likely be crucial for the EB-5 industry. EB-5 stakeholders, including business owners, immigration attorneys, broker-dealers, and investors, all look forward to positive reform.

The days before the June 30, 2021, suspension of the regional center program were busy for EB-5 project developers. Many foreign nationals rushed to file their I-526 petitions at a reduced amount before the EB-5 program’s most popular investment option became unavailable. As regional center-sponsored projects offered their investors light managerial requirements and were allowed to use very flexible job creation criteria, most foreign nationals chose to invest through regional centers when pursuing the EB-5 visa.

This enthusiasm, however, was short-lived. Even though the industry as a whole expected Congress to reauthorize the regional center program in a few short months, it has been defunct for over six months at the time of writing. An appropriations bill due in December 2021 was ultimately postponed, leaving the EB-5 industry without a convenient legislative vehicle to pass reform.

Since the second half of 2021, the EB-5 industry has still attracted millions of dollars of foreign investment capital, and foreign nationals are now more aware of and comfortable with the direct EB-5 investment model.

But what about the regional center investors whose I-526 petitions were being processed as of June 30, 2021?

United States Citizenship and Immigration Services (USCIS) is no longer processing I-526 petitions from regional center investors. As a result, these foreign nationals, who made EB-5 investments in good faith and in compliance with USCIS guidelines, now find themselves unable to continue with the EB-5 process.

What consequences could this situation have on the EB-5 investment industry, and how could it be solved?

Potential Consequences for EB-5 Projects

The longer regional center investors remain in processing limbo, the more likely it is for them to try to regain their invested capital. If USCIS takes a step further and denies these I-526 petitions, then numerous EB-5 projects could face litigation. This scenario would surely undermine the EB-5 investment program’s image and discourage potential investors from pursuing the EB-5 visa. Worse still, the U.S. economy would lose out on billions of dollars of valuable funding.

Alternatives to Reauthorizing the Regional Center Program

The most straightforward way to get regional center investors back on track would be for Congress to revalidate the regional center program. However, it has usually been difficult for the U.S. government to reach a consensus on what changes should be made to the EB-5 program. EB-5 reform is usually attached to a larger legislative vehicle; it is very unlikely for it to pass Congress on its own. Therefore, it remains unclear when the regional center EB-5 investment model will achieve reauthorization.

Given this uncertainty, many EB-5 industry members have sought to promote legislative action that would allow investors with valid I-526 petitions to continue with the EB-5 process regardless of whether the regional center program is authorized. Such a measure would surely restore investors’ confidence in the regional center program.

Even if no legislation aiding regional center investors is successful, it seems that USCIS may begin to process pending regional center petitions in the coming weeks or months: the agency released a statement in December 2021 announcing that it was “reevaluating” its policy of not acting on I-526 forms associated with regional centers.

In the meantime, the EB-5 industry is enjoying the many benefits of direct EB5 investment, including a more permanent and quantifiable impact on the U.S. economy, more transparent job creation, and permanence—the direct EB-5 model does not depend on reauthorization.

Even if provisions are made for regional center investors, EB-5 investors may now view the direct model as more secure and reliable. It may become the preferred investment model for foreign nationals seeking the lowest possible risk.

The thousands of foreign nationals who have completed the EB-5 process and are now enjoying permanent residency in the United States can attest to the fact that making an EB-5 investment is worthwhile. However, many of them would also agree that obtaining the EB-5 visa is a lengthy and not always straightforward process. United States Citizenship and Immigration Services (USCIS), along with the Department of State (DOS), have much to do in terms of improving the EB-5 investment program and making it more beneficial for investors, business owners, and local economies across the United States.

Admittedly, the EB-5 industry has had to contend with many sudden changes in the past few months. The most important of these was the June 2021 suspension of the regional center investment model, which left numerous regional center investors in a state of uncertainty: USCIS is no longer adjudicating their I-526 petitions, and it is unknown if or when the agency will reconsider this policy. Moreover, reauthorization for the regional center program is not guaranteed.

Aside from this recent issue, the EB-5 investment program has long been plagued by visa backlogs and lengthy processing times. It typically takes years for USCIS to adjudicate an investor’s Form I-526, and many countries have been subject to processing backlogs that impose even longer delays.

USCIS and the DOS should take action to address these issues and protect the interests of all EB-5 stakeholders. In fact, taking relatively simple steps could greatly reduce or even eliminate the aforementioned problems.

Expanding EB-5 Visa Allocation

Each year, the EB-5 investment program is awarded only about 10,000 visas. This number is not nearly enough to cover the huge demand for the EB-5 visa, especially from residents of Brazil, India, Vietnam, and China. All individuals who make an EB-5 investment are directly contributing to the well-being of the U.S. economy, so it is in the country’s interest to take on as many EB-5 investors as possible. Many small businesses, especially in targeted employment areas (TEAs)—which are either rural or have high unemployment—have found invaluable help in the form of EB-5 investment funding. This economic stimulus is especially important during the challenges caused by the COVID-19 pandemic.

USCIS and the DOS could choose to allocate more visas to the EB-5 program each year, perhaps awarding the program with some of its visas that have gone unused in previous years. They could also choose to consider every EB-5 investor and their family as one visa applicant. These approaches would allow far more visas to be awarded each year.

USCIS also has much to do in terms of improving the slow processing times for Form I-526, Immigrant Petition by Alien Investor. Some investors have even felt impelled to file mandamus litigation against USCIS due to the unreasonable delays. Expediting processing times would allow investors to receive their two-year conditional permanent residency much faster and make the EB-5 visa a more attractive option for foreign nationals.

Making Provisions for Regional Center Investors

As mentioned previously, USCIS has left regional center investors with pending I-526 petitions in a state of uncertainty. Because it is unclear if or when the regional center program will be revalidated, the agency should allow these investors to continue with the EB-5 process. Doing so is urgent because these foreign nationals may eventually try to get their EB-5 investment funds back through legal action, leaving EB-5 projects in an uncomfortable position.

The EB5 investment industry is far from perfect, but, despite the challenges, it continues to aid businesses across the United States. Its continued success is in the best interests of all involved.

The EB-5 Immigrant Investor Program was initially enacted in the 1990s as an economic stimulus effort in the United States. The primary objective of the program was to obtain foreign capital investment and utilize that money to create jobs and improve local economies across the country.

In exchange for a capital investment in a program-approved venture that creates at least 10 new, sustainable jobs for U.S. workers, foreign investors and their eligible family members become eligible for U.S. Green Cards. This immigration program is administered and overseen by United States Citizenship and Immigration Services (USCIS) under the Department of Homeland Security (DHS).

For nearly three decades, EB-5 investment activity was generally limited. However, due to financing issues for domestic real estate developers during the Great Recession, emerging wealth among Chinese EB-5 visa applicants became a driving force in the flourishment of the EB-5 program.

By now, the EB-5 industry is used to being in the spotlight, and not always for positive reasons. But how did this economy-building program land on the radars of the United States’ most prominent investigative agencies?

The EB-5 Industry Struggles with White-Collar Crimes

The EB-5 program has been responsible for creating more than one million jobs through the infusion of approximately $40 billion in EB-5 investments from 2008 to 2020. In tandem, however, it has developed a reputation for being associated with economic crimes like fraud and money laundering.

As a result, the U.S. Securities and Exchange Commission (SEC) and the Financial Industry Regulatory Authority (FINRA) named the program an “examination priority” in 2016. And Texas business investors seem to be particularly popular subjects in investigations like these. Despite the successful creation of more than 14,000 Texas jobs, there have also been a number of criminal investigations opened in that state.

Dallas Developer Faces Commissions Claim

One Dallas developer is facing a $1 million-plus claim that it owes finders’ commissions for its foreign investors in a downtown Dallas hotel redevelopment project. The SEC has partnered with the Internal Revenue Service (IRS) on an investigation into the financing of the hotel.

McAllen Couple Accused of EB-5 Fraud

In a 2013 case, SEC v. Marco A. Ramirez, a McAllen, Texas couple was charged with fraud in one of the very first significant federal enforcement actions concerning the EB-5 program. The defendants were accused of committing fraud crimes in order to obtain $5 million from Mexican, Egyptian, and Nigerian investors. They had promised these foreign investors to invest their capital into EB-5 projects but instead used the funds for personal gains—like their Texas-based Cajun restaurant.

The real take-away among these cases is that industry experts do not see EB-5-related enforcement actions by the SEC and other agencies slowing anytime soon. For this reason, as EB-5 Immigrant Investor Program participants, it is important to understand what types of enforcement actions are surfacing most frequently, and what they can do to help avoid becoming a party of interest in these types of investigations.

Common EB-5-Related Enforcement Actions

Unregistered broker-dealers are prohibited from earning commissions from security-based transactions in the United States. Because the majority of EB-5 financing scenarios are structured as securities offerings, these deals are highly susceptible to enforcement actions against EB-5 program participants. These cases are typically related to investor placement commissions paid to unregistered broker-dealers.

Why are these deals happening so often? The answer is simple: this structuring can be very lucrative for investment finders. Most EB-5 investment applicants prioritize their Green Cards over a monetary return on their investment. Typically, EB5 investment participants’ returns gross between 1% and 2% each year. Because of the lower expectation among investors on actual investment returns, the ultra-high placement commissions, which frequently exceed 20% of the total investment amount, become less of an issue for project developers.

Civil Litigation Also Spikes in the EB-5 Community

In addition to enforcement of regulation and criminal laws, the EB-5 community has also seen a spike in civil litigation. A pattern is emerging in which federal enforcement action is being taken directly following civil litigation as allegations surface from plaintiffs participating in the EB-5 investment program. A number of industry experts believe this is only the beginning of a trend we can expect in the wake of the completion of many projects that began during the EB-5 boom between 2012 and 2018.

EB5AN Keeps EB-5 Industry Members Informed

As industry advocates continue to lean on legislating bodies, EB5AN watches closely in order to keep its investors abreast of industry developments. Stay informed by frequenting our regularly updated blogs, and, for any specific questions regarding your own EB-5 investment, feel free to reach out!

Since June 2021, EB-5 regulations and procedures have undergone several changes, many of which have been unexpected. Still, project developers and investors have benefitted from the June 22, 2021 repeal of the EB-5 Modernization Rule. This court ruling found that the Modernization Rule had been implemented improperly in November 2019. As a result, EB-5 investment regulations reverted to their pre-November 2019 status.

However, United States Citizenship and Immigration Services (USCIS) filed an appeal against the court’s decision on August 23, 2021. If successful, this appeal would have brought back Modernization Rule guidelines and had a significant impact on the EB-5 industry; for instance, individual states would no longer be authorized to designate targeted employment areas (TEAs). More importantly, the minimum EB-5 investment thresholds of $500,000 for TEA projects and $1,000,000 for non-TEA projects would have been raised to $900,000 and $1,800,000, respectively. In the past few months, foreign nationals from a variety of countries have been able to invest in U.S. businesses and begin the EB-5 visa application process thanks to these reduced investment thresholds.

To the relief of many EB-5 professionals, USCIS withdrew its appeal against the Modernization Rule court ruling on January 5, 2022. It seems that the lower investment amounts and other pre-November 2019 regulations will remain in place for the time being. Both foreign nationals interested in the EB-5 investment visa and U.S. business owners in need of investment capital will benefit from the more accessible investment threshold of $500,000.

Could the Modernization Rule be Reimplemented?

Despite the withdrawal of USCIS’s appeal, the EB-5 industry still faces the possibility of going back to Modernization Rule guidelines. USCIS or the Department of Homeland Security (DHS) could take legislative action to raise the EB-5 investment thresholds once more. In fact, an appropriations bill due in February 2022 might be an ideal vehicle to pass legislation reforming the EB-5 program. Of course, it is unclear if or when USCIS or the DHS will take such action.

In the meantime, foreign nationals who wish to make an EB5 investment at only $500,000 should act quickly to find a suitable project. Due to the legislative lapse of the EB-5 Regional Center Program, all EB-5 investments must be direct for the time being. The direct investment model offers several enticing benefits for investors and project developers.