Most members of the EB-5 investment industry would certainly agree that 2021 has been a turbulent year, perhaps one of the most eventful periods in the EB-5 Immigrant Investor Program’s 31-year history. This year saw major changes to EB-5 policies and regulations.

To begin with, the EB-5 Modernization Rule, which had made many controversial changes to EB-5 investment regulations, was invalidated by a June 22, 2021 court ruling. This move reversed the minimum EB-5 investment thresholds back to their pre-November 2019 amounts of $500,000 for targeted employment area (TEA) projects and $1,000,000 for projects outside TEAs. The EB-5 industry as a whole welcomed this change enthusiastically, but the program would soon suffer a major blow. Just a few days later, on June 30, the regional center program expired. Congress failed to pass a bill that would have reauthorized the regional center investment model and made other reforms to the EB-5 program.

Despite this setback, many EB-5 investors and project developers were confident that the lapse in regional center EB-5 investment would be brief. Unfortunately, they were mistaken—as of December 2021, the regional center program remained unauthorized. Many had hoped that Congress would include EB-5 reform in an appropriations bill that was due in December 2021, but it now seems that regional center investment will not be revalidated until February 2022—at the earliest.

As 2022 begins, members of the EB-5 industry and foreign nationals interested in the EB-5 visa may wonder what the future holds for the EB-5 program.

Direct Investment Will Likely Remain Popular

Even though most EB-5 investors used to choose projects sponsored by regional centers due to their flexible job creation criteria, direct EB-5 investment is now the sole option for EB-5 investors. This investment model offers several distinct advantages, often granting investors increased managerial responsibilities and higher returns. Perhaps the greatest advantage to investing in a direct EB-5 project is knowing that direct investment will never suffer a legislative lapse—direct EB5 investment is an inextricable component of the EB-5 program. As such, it does not require periodic reauthorization. Many investors have found suitable direct EB-5 projects in 2021.

What Will Happen to Regional Center Investors?

Due to the expiration of regional center investment, tens of thousands of foreign nationals who had filed their I-526 petitions now find themselves unable to continue with the EB-5 process. United States Citizenship and Immigration Services (USCIS) is no longer processing I-526 petitions from regional center investors; the agency is unlikely to resume adjudication on such petitions unless Congress revalidates the regional center program.

Therefore, regional center operators and investors hope that EB-5 reform, including reauthorization for regional center investment, will be included in the appropriations bill that is due on February 18, 2022. The possibilities of a bill that exclusively addresses the EB-5 program to be passed in Congress are very low.

It may be that the EB-5 industry will find an alternative way to rescue regional center EB-5 investors from processing limbo, such as proposing legislation that would require USCIS to process regional center visa petitions even if the program is suspended. It is clear that the lapse in regional center investment has not only been detrimental to the EB-5 industry—it has also deprived the U.S. economy of much-needed investment capital.

Despite these potential issues, the EB-5 visa remains an ideal way to relocate to the United States, and it has injected billions of dollars of funding into U.S. businesses. 2022 will likely be another eventful and busy year for the EB-5 industry.

Many foreign nationals view the EB-5 investment program as the safest and most reliable way to move to the United States with their families. Indeed, the visa-by-investment approach taken by the EB-5 program has benefitted the country’s economy, created jobs, and helped thousands of foreign nationals to relocate to the United States.

However, the EB-5 industry can be difficult to navigate. The regulations on the EB-5 program set out by United States Citizenship and Immigration Services (USCIS) are numerous and complex. Therefore, it is essential for EB-5 investors to work with immigration counsel in every step of the process; if an EB-5 investment fails to comply with all USCIS regulations, the investor will become ineligible for permanent resident status.

Investors must also keep in mind that the minimum EB-5 investment amounts are substantial: targeted employment area (TEA) projects require a minimum investment of $500,000, and the investment threshold for non-TEA projects is $1,000,000. Moreover, one of the key requirements for EB-5 investment capital is that it must remain at risk; all EB-5 investors must be able to experience either loss or gain, and there can be no guarantees that their funding will be returned. Foreign nationals who would like to make an EB-5 investment must consider the following factors when evaluating potential projects.

Evaluate Projects Thoroughly to Avoid Fraud

Unfortunately, EB-5 business owners have occasionally committed fraud and misused EB-5 capital. Before subscribing to a project, potential EB-5 investors should do research on the experience and legal standing of the project’s owners and managers, especially those in charge of overseeing the EB-5 investment funds. Making an in-person or virtual site visit is highly recommended, and transparent EB-5 projects will gladly allow investors to tour the project site. Foreign nationals should also gather third-party information on the EB-5 project and the parties involved.

Reducing Immigration Risk

Many EB-5 investors are more concerned with obtaining U.S. permanent resident status than gaining significant profits from their investments. Therefore, it is crucial to evaluate an EB-5 project’s immigration risk—that is, its chances of being completed successfully and complying with all USCIS requirements, such as creating 10 jobs per investor.

One of the most relevant factors that determine a project’s immigration risk is whether it will be completed if the expected amount of EB-5 funding is not raised. The most trustworthy EB-5 projects will have an alternative source of funding available in the case of a shortfall of EB-5 capital. This way, it will be much more likely for the project to be completed successfully.

It is also indispensable to evaluate an EB-5 project’s potential for job creation. Projects that plan on generating far more than 10 jobs per investor and thus offer ample job cushions are the safest options. In fact, foreign nationals may even be able to invest in projects that have already created the necessary number of jobs. For instance, a real estate development project may create all the necessary jobs for its investors before construction is complete. Potential EB-5 investors should look for safe opportunities like these.

Interested foreign nationals must also look at the more minute details of a project’s offering. For instance, job creation must be timed carefully. If all 10 jobs have not been created by the time USCIS adjudicates Form I-829, an EB-5 investor will be unlikely to receive permanent resident status. In addition, projects with USCIS exemplar status or an approved I-526 petition have already shown compliance with all of the agency’s standards.

Making an EB5 investment requires diligent planning and professional consultation, but numerous foreign nationals have successfully relocated to the United States and even obtained citizenship through the program. Potential investors should contact EB5AN to receive personalized guidance on how to begin the EB-5 process and find trustworthy projects.

The December 2021 Visa Bulletin contained momentous news for the EB-5 investment industry: for the first time since 2015, all direct EB-5 investors would no longer be subject to final action dates or dates for filing. This positive development enables direct investors to apply for and receive their visas as soon as their I-526 petitions have been approved by United States Citizenship and Immigration Services (USCIS).

Fortunately, the January 2022 Visa Bulletin shows that all direct investors remain at “C” (current) status. Chinese EB-5 investors, who had been subject to cutoff dates since 2015, will undoubtedly benefit from possessing current status; many more foreign nationals will likely be able to move on with the EB-5 process and get closer to obtaining permanent resident status.

Despite the good news in the two most recent Visa Bulletins, the EB-5 Regional Center Program, which had been the most popular EB5 investment type, remains suspended as of December 2021. The U.S. government has failed to revalidate the regional center program since its expiration on June 30, 2021. This extended lapse has contributed to the popularity of direct EB-5 investment, which often grants investors many unique benefits such as increased managerial control and, possibly, higher returns.

Chart A

Chart A of the January 2022 Visa Bulletin contains the final action dates for oversubscribed countries. As in the previous bulletin, all direct (“non-regional center”) investors enjoy “C” status and can receive their visas as soon as they are documentarily qualified.

The regional center values in Chart A are marked as “U” (unauthorized). In Section D of the Visa Bulletin, the Department of State (DOS) notes that, should the regional center program be reauthorized in January 2022, the final action date for regional center investors will be November 22, 2015. However, it is unlikely for regional center investment to be revalidated before February 2022.

Chart B

The dates for filing are current for all direct investors, meaning that these EB-5 investment applicants no longer have to wait to request their visas. The date for filing for Chinese regional center investors remains at December 15, 2015.

It is unclear how long the regional center program will remain suspended, or how a possible reauthorization could affect the cutoff dates. Still, Chinese investors whose EB-5 visa petitions were put on hold due to the cutoff dates are surely relieved that they can now continue with the process.

The EB-5 visa’s popularity has noticeably increased in recent years, with thousands of foreign nationals participating in the EB-5 investment program and obtaining U.S. permanent resident status. Even though many investors have obtained U.S. green cards through the EB-5 program, foreign nationals interested in the EB-5 industry should note that simply making an EB-5 investment does not guarantee that the investor will receive permanent residency. United States Citizenship and Immigration Services (USCIS) examines every EB-5 investment to determine whether it complies with its guidelines. USCIS regulations govern the way EB-5 investments can be made, the kind of businesses that are eligible for the EB-5 program, and many other facets of the EB-5 industry.

To ensure compliance with USCIS guidelines, EB-5 investors must work closely with experienced immigration counsel and do thorough research on the EB-5 program before investing. During the EB-5 process, investors must submit Form I-526, Immigrant Petition by Alien Investor, and Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status. These visa petitions determine whether an EB-5 investor will receive a U.S. green card.

Occasionally, despite an investor’s best efforts, USCIS denies their visa petition. In this article, we explain how investors can respond to a USCIS denial.

Next Steps After a USCIS Denial

If an EB-5 investor receives a petition denial, this does not necessarily mean that they will never be able to immigrate to the United States. First, they should read the denial notice carefully to find out why USCIS found the visa petition deficient. The investor’s immigration counsel should also review the denial notice.

If an EB-5 investor and their immigration counsel possess evidence that could likely persuade USCIS to reconsider the visa petition, they might decide to file a legal motion requesting the agency to reevaluate its decision. Of course, a legal motion must be accompanied by an exhaustive, detailed explanation of why the visa petition is valid. If an investor’s legal motion is unsuccessful, they may instead file an appeal of the petition denial.

EB-5 investors should also keep in mind that they will likely be able to file a new EB-5 visa petition. If, for instance, an investor’s petition was denied because the EB-5 project was not USCIS-compliant, they can simply file a new petition with a more reliable project.

Common Reasons for USCIS Denials

Of course, the best course of action is to avoid a USCIS denial in the first place. In many cases, EB-5 petitions are rejected because the investor failed to reach the minimum investment threshold. As of June 22, 2021, the minimum investment amounts are $500,00 for targeted employment area (TEA) projects and $1,000,000 for non-TEA projects. USCIS is also strict about enforcing the at-risk requirement, which entails that EB-5 investors cannot have a contractual right to repayment; they must be open to either profits or losses.

Moreover, the information provided in EB-5 visa petitions must be as accurate and up-to-date as possible. For instance, Form I-526 must include detailed information on the EB-5 project’s business plan, including its financial projections and capacity for job creation. These figures must be presented consistently across the petition.

EB-5 investors must also take great care to provide the needed source-of-funds documentation in Form I-526, tracing the EB-5 investment capital back to its source. USCIS must be able to ascertain that the EB-5 investment funds were sourced legally, and preparing this evidence is one of the most important aspects of the EB-5 process.

The EB5 investment process may bring unexpected challenges or delays; still, as long as an EB-5 investor plans carefully and works with competent immigration counsel, they will likely be able to obtain U.S. permanent resident status.

In recent years, numerous U.S. business owners have expressed interest in the EB-5 investment industry. The EB-5 program has for many years allowed foreign nationals to receive U.S. green cards in exchange for investing in qualifying businesses. Since EB-5 investment capital is often available at below-market rates, it is especially convenient for the U.S. economy.

The EB-5 investment industry is overseen by United States Citizenship and Immigration Services (USCIS). Moreover, making an EB-5 investment does not guarantee that a foreign national will receive permanent resident status: USCIS will carefully examine the investment to ensure that it complies with the EB-5 program’s requirements. EB-5 investors receive permanent residency only after their I-526 and I-829 visa petitions have been approved. USCIS requires all EB-5 investments to create a minimum of 10 jobs, remain at risk, and fulfill many other criteria.

Therefore, EB-5 projects must be tailored to the needs of EB-5 investors and comply with all USCIS guidelines. Project developers should take care to offer ample job creation potential, avoid relying solely on EB-5 capital, and try to obtain TEA designation.

Potential for Employment Creation

One of the main purposes of the EB-5 program is to reduce unemployment, so USCIS is strict about its job creation requirement. Even though each investor needs to be allotted a minimum of 10 jobs, EB-5 project developers are recommended to create more than the minimum number of jobs. EB-5 projects with an ample job cushion are perceived as safer and are thus popular among investors.

In some cases, investors may wait until a project has already created several jobs and then subscribe. For instance, a construction project that is open to a maximum of 10 EB-5 investors may plan on creating approximately 300 jobs. Once construction is halfway through, about 150 jobs will have been created. An EB-5 investor who subscribes to the project at this point will already fulfill the employment creation requirement.

Avoiding Reliance on EB-5 Funding

The safest and most popular projects do not rely on EB-5 funding for completion; EB-5 investment capital should make up a relatively small portion of the overall capital stack. Therefore, the project should be successfully completed even if there is a shortfall of EB-5 funds. Having alternative sources of funding is perhaps the most important factor that determines a project’s reliability from an immigration perspective.

Alternative sources of funding can include an initial bridge loan or additional sources of debt or equity. Irrevocably committed developer funds, a construction completion guarantee (if applicable), and a senior loan with a major bank will also add to an EB-5 project’s reliability from an immigration perspective.

TEA Designation

The standard EB-5 investment threshold is $1,000,000, but EB-5 projects located in targeted employment areas (TEAs) can receive investments of only $500,000. Naturally, most investors look for projects located in TEAs.

The EB-5 industry offers valuable opportunities for U.S. business owners. As long as an EB-5 project has sufficient job creation potential, does not rely on EB5 investment funds for completion, and possesses TEA status, it will likely attract EB-5 investors. Interested project developers should consult with EB5AN, which has helped numerous U.S. businesses obtain EB-5 capital.

Many foreign nationals who would like to immigrate to the United States through the EB-5 program may feel somewhat intimidated at first. After all, United States Citizenship and Immigration Services (USCIS) carefully evaluates every EB-5 investment to ensure compliance with its regulations. In addition, the EB-5 investment process is complex and takes several years. It is also important to note that foreign nationals are not automatically guaranteed to receive permanent resident status after making an EB-5 investment.

U.S. business owners may find themselves in a similar situation. The lawful, secure source of capital offered by the EB-5 program is especially desirable in the wake of the COVID-19 pandemic and the ensuing economic hardships. However, EB-5 business owners must take great care to follow USCIS requirements when creating their projects; if they fail to do so, their EB-5 investors will not qualify for U.S. green cards.

Fortunately, both EB-5 investors and business owners can rely on EB-5 immigration counsel to guide them throughout the process. It is crucial for anyone interested in the EB-5 investment industry to work with an experienced immigration attorney. These professionals can help ensure compliance with USCIS regulations.

Immigration Counsel for EB-5 Investors

The first step investors must take is to choose an EB5 investment project. Immigration attorneys can help investors evaluate projects, favoring those with the lowest immigration risk—that is, projects that comply with USCIS regulations, such as the at-risk and job creation requirements. It is particularly important to choose an EB-5 project that can create at least 10 jobs per investor; job creation is one of the main objectives of the EB-5 program.

Once an EB5 investment has been made, investors must submit Form I-526, Immigrant Petition by Alien Investor. This lengthy visa petition must contain detailed information about the EB-5 investment and the EB-5 business. It must also trace the invested funds back to their source in great detail. This last requirement can be especially challenging, so immigration attorneys will be invaluable in gathering the source-of-funds documentation.

Once an EB-5 investor has their I-526 petition approved and nears completion of their conditional residency period, it will be time to file Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status. This petition must, in essence, demonstrate that the EB-5 investment capital remained at risk throughout the conditional residency period and that at least 10 jobs were created. Immigration attorneys can help EB-5 investors identify the necessary evidence and submit their I-829 petitions before the deadline. (I-829 petitions must be submitted within the last 90 days of an investor’s conditional residency.)

Immigration Counsel for EB-5 Business Owners

From the very start of an EB-5 business’s creation, an immigration attorney can help the owner comply with USCIS regulations as the business’s structure and operations are determined. The way EB-5 funds are received and used is a crucial aspect of any EB-5 business due to the at-risk requirement, which entails that all EB-5 investors must be open to either gains or losses. Immigration counsel can also make sure that a project’s business plan, exit strategy, and other details are EB-5-compliant.

Evidently, immigration attorneys play an essential role in the EB-5 investment industry. Both investors and project developers would do well to find experienced immigration counsel before getting involved in the EB-5 program.

The EB-5 Immigrant Investor Program is famous among foreign nationals from all over the world as a direct route to a U.S. green card. However, it is also known for being a slow process that can take several years.

Having made a qualifying investment, an EB-5 investor must file Form I-526 with United States Citizenship and Immigration Services (USCIS). If the investor meets the criteria of the EB-5 investment program, USCIS will approve the I-526 petition, and the investor will be granted conditional U.S. residency for two years.

Then, EB-5 investors must request that the conditions on their residency status be removed through Form I-829. This petition allows USCIS to evaluate whether the EB-5 investment remained compliant with the program’s regulations and created the required number of jobs. If approved, the EB-5 investor and their family will qualify for permanent residency in the United States.

USCIS is notorious for its slow adjudication times for both I-526 and I-829 petitions, meaning that the process can take several years. EB-5 investors who have dependent children nearing the age limit for the EB-5 visa may want to complete the process before their children age out.

However, two changes that occurred to the program in 2021 may offset these delays and allow direct EB-5 investors to obtain their green cards faster.

Speeding up Processing Times for Form I-526

While backlogs of pending I-526 petitions have been a feature of the EB-5 program over the years, a significant change in June 2021 could lead to faster processing times. With the expiration of the regional center program, USCIS announced it would no longer process pending I-526 petitions from regional center investors.

As regional center projects were the most popular route for foreign nationals to make an EB-5 investment, this decision should free up a lot of USCIS resources, which could be refocused to processing petitions from direct EB-5 investors.

However, industry experts speculate that regional centers could be reauthorized as soon as the end of 2021, which could signal a return to slower processing times. Prospective investors looking to participate with a direct EB5 investment are recommended to use this opportunity before the situation changes.

Cutoff Dates Removed

In response to backlogs dating back to 2015, USCIS has implemented cutoff dates for Chinese applicants who have filed Form I-526. These cutoff dates cause delays for EB-5 investors, as they have to wait before applying for or obtaining their conditional green cards.

However, in the December 2021 Visa Bulletin it was announced that there would no longer be cutoff dates for direct EB-5 investors, regardless of their nationality. This means that all investors who make a direct EB-5 investment will be able to obtain their visas as soon as their petitions are approved. This is particularly good news for prospective EB-5 investors from China, as their applications have been subject to cutoff dates for six years.

However, if the regional center program is reauthorized, investors who choose that EB-5 investment route will be subject to cutoff dates as before.

Direct EB-5 projects and investors can benefit greatly from the expiration of the regional center program as well as the removal of cutoff dates. This combination of events, as well as the lowering of the minimum EB-5 investment amount to $500,000, makes it a very advantageous time for foreign nationals to make a direct investment. Interested foreign nationals are advised to act quickly to enjoy shorter processing times and a faster route to their U.S. green cards.

EB-5 investors, immigration attorneys, and other professionals involved in the EB-5 investment industry all agree that the job creation criteria set out by United States Citizenship and Immigration Services (USCIS) is key to determining a foreign national’s eligibility for an EB-5 visa. One of the main reasons Congress created the EB-5 Immigrant Investor Program in 1990 was to reduce unemployment in the United States; besides meeting the minimum investment threshold, EB-5 investors must also create at least 10 full-time jobs for U.S. workers.

USCIS carefully evaluates Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status, to determine whether an EB-5 investment has complied with its regulations, including the job creation requirement. EB-5 investors who file Form I-829 must include evidence such as an econometric analysis of the EB-5 project’s activities and the new commercial enterprise’s (NCE’s) payroll records.

To increase their chances of receiving approval for Form I-829, EB-5 investors must choose their projects carefully. The most reliable projects from an immigration perspective aim to create more than 10 jobs per EB-5 investor, thus accounting for any unforeseen obstacles or capital shortfalls.

It is crucial for EB-5 investors to understand the rules governing job creation, including specifics regarding employee eligibility and the differences between direct, induced, and indirect employment.

Employee Eligibility

The USCIS Policy Manual says the following about what kinds of workers count toward fulfilling the EB-5 job creation requirement:

“For the purpose of the job creation requirement, the employee must be a qualifying employee. A qualifying employee is a U.S. citizen, a lawfully admitted permanent resident, or other immigrant lawfully authorized for employment in the United States including, but not limited to, a conditional resident, a temporary resident, an asylee, a refugee, or a noncitizen remaining in the United States under suspension of deportation.”

In light of these guidelines, an EB-5 project’s employees that appear on the NCE’s payroll must be legally authorized to work in the United States. EB-5 project developers can hire employees who are U.S. permanent residents, citizens, legal asylees, and refugees. However, workers holding L, M, or O visas will not count toward fulfilling the job creation requirement. Moreover, an EB-5 investor and their family members cannot count as EB-5 employees.

Direct, Induced, and Indirect Employment

Direct employment is made up of workers who appear on the NCE’s payroll. These employees are hired and paid by the EB-5 project. In addition, direct positions must last for a minimum of two years and be full time; USCIS allows several different employees to fill an EB-5 job position during the two-year period, and job-sharing agreements can be used. Direct EB-5 projects can count only this type of employment.

In contrast, indirect and induced employment is not comprised of workers who are hired by the NCE. Rather, indirect and induced jobs are created by the EB-5 project’s positive economic impact on the community. For instance, an EB5 investment project will likely use local companies to obtain goods and services, and the project’s employees will spend their wages in the locality. Regional center-sponsored projects can count direct, indirect, and induced jobs.

Foreign nationals interested in making an EB-5 investment and pursuing permanent resident status should retain an experienced immigration attorney, who can help them find the safest EB-5 projects with adequate job creation criteria.

The expiration of the EB-5 Regional Center Program has lasted longer than many industry members expected. As of December 4, 2021, regional center EB-5 investment has been suspended for more than five months.

This extended lapse in the program has inconvenienced regional center investors; United States Citizenship and Immigration Services (USCIS) is no longer processing I-526 petitions associated with regional centers. As a result, regional center investors may have to wait for several months for their I-526 petitions to be adjudicated, and they could eventually try to get their invested capital back.

Unfortunately, it has become clear that the regional center program will not be revalidated in 2021 because Congress failed to reach a consensus on the appropriations bill for the 2022 fiscal year. This spending bill could have included reform for the EB-5 program and reauthorized regional center EB-5 investment. To avoid a shutdown of the government, Congress instead passed a continuing resolution that will keep government agencies operating until February 18, 2022.

Once the February 2022 deadline arrives, the U.S. government will have two options: it can either use another temporary measure to keep the government running or finally pass the long-awaited appropriations bill. If the latter option is chosen, the appropriations bill could revalidate regional center investment—but this is only a possibility.

Regardless of whether Congress passes another continuing resolution or the appropriations bill, any modifications to the EB-5 program will need to be a part of a larger bill; the controversial nature of immigration legislation means that a standalone EB-5 reform bill is unlikely to succeed.

An Opportunity for Direct EB-5 Investment

While the future of the regional center program is shrouded in uncertainty, direct EB-5 investment has taken center stage in the EB-5 industry. Direct EB-5 investors could have their I-526 petitions processed faster than before since USCIS is no longer adjudicating such petitions from regional center investors. Moreover, direct EB-5 projects can accept investments at the reduced amount of $500,000, and this investment threshold could be raised by the time the regional center program is revalidated.

Foreign nationals and project developers interested in the EB5 investment program should also note that direct investment is an integral part of the EB-5 industry; it does not need to be revalidated by the U.S. government. Direct EB-5 investors will never find themselves in a situation similar to that of their regional center counterparts, whose I-526 petitions are currently in limbo. Interested foreign nationals can contact EB5AN, which offers personalized consulting services for EB-5 investors and business owners.

Thousands of foreign investors have gone through the EB-5 investment process successfully and obtained U.S. green cards for themselves and their families. The EB-5 process takes several years, and investors must work closely with their immigration attorneys throughout every step of the process, especially when filing their visa petitions with United States Citizenship and Immigration Services (USCIS). Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status, is the final visa petition in the EB-5 process. The purpose of Form I-829 is to prove that an EB-5 investment and the EB-5 project have remained in compliance with USCIS regulations.

EB-5 investors are granted U.S. green cards only if USCIS approves Form I-829, so it is crucial for investors to compile their I-829 petitions carefully with the guidance of their immigration attorneys. In essence, investors filing Form I-829 must prove that an EB5 investment has been made and that the EB-5 project met the employment creation requirement.

Proving That an EB-5 Investment Was Made

Form I-829 is filed within the final 90 days of an EB-5 investor’s two-year conditional residency period. To prove that an EB-5 investment was made in a new commercial enterprise (NCE), investors must first gather evidence that an NCE was established. The evidence may include the NCE’s tax returns, contracts, legal permits, and similar documents.

Next, investors must submit evidence that they invested in this NCE. These documents can include bank or financial statements. The minimum EB-5 investment amounts are, as of June 22, 2021, $500,000 for targeted employment area (TEA) projects and $1,000,000 for non-TEA projects. All EB-5 funds must remain at risk—that is, investors must be open to profits or losses.

Proving Job Creation

Reducing unemployment is one of the main objectives of the EB-5 program. Every EB5 investment must be used to create at least 10 jobs, so Form I-829 must include documentation such as the NCE’s payroll records and tax documents. Investors should keep in mind that direct and regional center-sponsored projects have different job calculation methods: direct EB-5 projects can count only jobs that appear on the NCE’s payroll, but regional center projects can also count indirect and induced employment, which results from the EB-5 project’s positive economic impact on the community.

Besides proving that the EB-5 funds were invested and that the employment criteria were met, Form I-829 must also contain personal information. If an applicant has a criminal history or is filing as a former spouse or as the spouse or child of an investor who has died, this must be noted in the I-829 petition.

Enjoying U.S. Permanent Resident Status

Once USCIS approves Form I-829, the applicant and their qualifying family members receive permanent resident status, which allows them to live and work anywhere in the United States without restrictions. Moreover, EB-5 investors who have held permanent resident status for at least five years can apply for U.S. citizenship.

USCIS has strict evidentiary standards for EB-5 visa petitions, including Form I-829, but investors can increase their chances of approval by working with immigration counsel and an EB-5 consulting firm. EB5AN offers personalized consulting services for EB-5 investors and helps them embark on the EB-5 investment process with confidence.