As we enter the second month of FY2021, the EB-5 final action dates show no sign of jumping forward rapidly. The figures come as a disappointment to the many Chinese and Vietnamese applicants with EB-5 investments waiting to finally begin their new lives in the United States. FY2021 has potential to be a phenomenal year for EB-5 investors, considering that nearly twice as many EB-5 visas than average are available in FY2021—a beneficial side effect of the COVID-19 pandemic and its devastating effects on travel and immigration. With this news released at the beginning of the fiscal year in October 2020, investors hoped the surge in available EB-5 visas would spur rapid forward momentum in the November 2020 Visa Bulletin. Alas, this was not the case.

Generally, United States Citizenship and Immigration Services (USCIS) releases the monthly Visa Bulletin around two weeks before the respective month begins, but the November 2020 Visa Bulletin showed up barely before November began. This delay indicates possible difficulties in determining the final action date figures this time around. Temporarily suspended visa services at U.S. consulates and embassies have left countless EB-5 investors unable to proceed with their EB-5 journey, regardless of the Visa Bulletin dates, while domestic investors have encountered no obstacles in filing Form I-485 to adjust their immigration status. Thus, moving the final action dates forward generally helps only I-485 applicants. This leaves USCIS with a dilemma: push the final action dates forward and risk major retrogression when routine visa services resume, or keep the pace slow and risk countless EB-5 visas going unclaimed?

The final action dates in the November 2020 Visa Bulletin indicate USCIS’s decision to pursue the latter option. The dates are almost identical to those of the October 2020 Visa Bulletin, with the Chinese final action date staying put and the Vietnamese final action date moving ahead by two weeks. That puts the Chinese final action date at August 15, 2015, and the Vietnamese one at August 15, 2017. India has once again retained its “current” status after initially achieving it in July 2020, but retrogression in the future is possible.

China remains the only country with an EB-5 date for filing, which has remained at December 15, 2015, for the ninth month in a row. Those from China with EB5 investments who are waiting to file their application for a U.S. green card have been stuck in limbo since the onset of the COVID-19 pandemic in the United States, and their frustration is not set to end for at least another month.

Considering the dismal news of the November 2020 Visa Bulletin, individuals making EB-5 investments from backlogged countries should hope for eased COVID-19 restrictions to trigger forward movement in the Visa Bulletin. At least in November, USCIS has clearly chosen to let EB-5 visas go unclaimed to avoid potential visa retrogression in the future.

The EB-5 Immigrant Investor Program, which carves out a pathway for foreign investors to obtain U.S. green cards for themselves and their immediate family, offers two types of investment projects: those located within a targeted employment area (TEA), and those that are not. The majority of foreign nationals who make an EB-5 investment to obtain permanent resident status in the United States invest in a TEA project because it halves the amount of required capital from $1.8 million to $900,000.

In the past, EB-5 investors would obtain a TEA designation letter from the state labor department attesting to the project’s TEA status. They would then include this letter with their I-526 petition to United States Citizenship and Immigration Services (USCIS), solidifying their EB5 investment in the lower required amount.

That all changed when the Modernization Rule kicked in on November 21, 2019. The new regulation introduced a slew of new rules for TEAs, including the elimination of the state-issued TEA designation letter. The new set of rules places the onus for TEA status justification squarely on the shoulders of the EB-5 investor, requiring them to submit documentation supporting the designation of the project as a TEA project alongside their I-526 petition.

Investors can still obtain a letter to show USCIS that their project is in a TEA, but it can’t come from the state—it must now come from a private expert. And a letter alone won’t suffice—an investor must provide a myriad of documentation to justify their lower EB-5 investment amount.

EB5AN’s TEA Map

Proving the TEA status of an EB-5 project can be challenging—but EB5AN’s TEA map dramatically facilitates the process. EB-5 investors are required to use official data and figures from the U.S. Census Bureau and Bureau of Labor Statistics, but it can be difficult for the uninitiated to scour these sites to cull the relevant pieces of data. The price of mistakes is high, too—insufficient or inaccurate data can cost an EB-5 investor an extra $900,000—or, if they don’t have the funds to double their EB5 investment, their bright future in the United States.

EB5AN’s TEA map is the ideal solution for EB-5 investors looking to justify the TEA designation of their investment project. It’s simple and straightforward to use: simply enter an address, and the map will display the TEA status of the region. The map is designed for the easy and instantaneous identification of TEAs, with census tracts that qualify as TEAs highlighted in orange.

It’s important to note that even if the individual census tract that an EB-5 project is located in does not qualify for TEA status, it may when combined with adjacent census tracts. The EB5AN TEA map automatically combines census tracts when necessary to create a custom TEA. This maximizes the potential of any EB-5 project to qualify for TEA status.

If an investor’s EB-5 project is indeed located in a TEA, they can also download a free TEA letter template, further facilitating the process of demonstrating TEA status to USCIS. By simply filling in the details of the specific project, an EB-5 investor can easily craft a professionally written and succinct TEA letter that offers clear argumentation for the TEA designation of the given project.

The I-526 petition is the first step to initiating the EB-5 process with United States Citizenship and Immigration Services (USCIS). In an I-526 petition, an EB-5 investor outlines details about themselves and their chosen EB-5 project, including the likelihood of the new commercial enterprise (NCE) to create at least 10 new full-time jobs for U.S. workers with the invested capital. If USCIS approves the investor, they are deemed eligible for an EB-5 visa and may apply for conditional permanent resident status for themselves, their spouse, and any unmarried children below the age of 21.

Foreign nationals who have committed to making an EB-5 investment, whether for $1.8 million or the reduced $900,000 amount for targeted employment area (TEA) projects, must compile and submit an I-526 petition to formally launch their EB-5 application process. Although the precise procedure differs from project to project and can be found outlined in a given project’s documentation, EB-5 investors generally file their I-526 petition after transferring their EB-5 capital to a designated escrow account. Should an investor receive a denial on their EB-5 petition, the capital in the escrow account is returned to them.

Once an EB-5 investor has consulted an immigration lawyer about the suitability of the EB-5 program for their goals, conducted meticulous due diligence to select a trustworthy EB-5 project with low immigration and financial risk, and tentatively committed their EB-5 funds to the NCE in the form of a transfer to the escrow account, it’s time for them to put together their I-526 petition. The first step is to locate the latest version of the form on the USCIS website. The next step is to carefully fill out the form and gather the accompanying documentation, which can be time-consuming.

Required Information for Form I-526

Those making an EB5 investment are required to divulge substantial amounts of information about themselves, their investment, and their family. Below are a few examples of the information EB-5 investors must include in their I-526 petition:

• Personal details, such as country of citizenship, current and past addresses, and employment history
• Personal information about the applicant’s spouse and dependent children
• Details about present U.S. immigration status, for those applying domestically as a holder of a different visa
• Information about previous U.S. immigration dealings and visas the investor has received or applied for
• Information regarding the EB-5 investment

Most of this information should be easy for an EB-5 investor to obtain and include in an I-526 petition. Far more challenging is collecting the supplementary documentation, including proof of the lawful sources of the EB-5 capital.

Collecting the Required Documentation for an I-526 Petition

Applicants are required to submit substantial documentation to support their EB-5 investment. While the most daunting and time-consuming is usually the source-of-funds documentation, which demonstrate the legality of an investor’s EB-5 capital, investors must also include documentation on their chosen EB-5 project, including financial reports and hiring timetables to showcase the expectation of creating 10 new full-time jobs for U.S. workers during the investor’s two-year conditional permanent residency window. If the project is in a TEA, the investor must also append the appropriate documentation to prove the project’s status as being in a high-unemployment or rural TEA.

Gathering the source-of-funds documentation can be tricky, depending on the type of capital involved. Applicants may derive their EB5 investment from any number of sources, including loans, inheritance money, and donations, but in all cases, the lawful sources of the funds must be demonstrated. If the capital is derived from a gift, the investor must provide a note outlining the donation and waiving the recipient’s obligation to repay the money, and the donor’s lawful acquisition of the funds must be documented.

EB-5 investors are urged to consult an experienced EB-5 immigration attorney about the source-of-funds requirement. Some fund sources are significantly easier to trace than others, so an EB-5 immigration lawyer can help an investor determine which of their fund sources are best suited to the EB-5 program. In addition to facilitating the source-of-funds requirement, working with an EB-5 immigration expert can also help an investor compile a comprehensive I-526 petition that includes all the required information and documentation, reducing the likelihood of receiving a request for evidence (RFE) or notice of intent to deny (NOID). Collaborating with an EB-5 immigration attorney can put EB-5 investors that much closer to their dream of a life of freedom in the United States.

While the EB-5 Immigrant Investor Program is generally the quickest and easiest pathway for a foreign national to gain U.S. permanent resident status, that doesn’t mean the program isn’t complex. Each EB-5 project and each EB-5 investment involves a multitude of factors that an investor must navigate to ultimately emerge victorious with U.S. green cards for themselves, their spouse, and their unmarried children below the age of 21. Questions abound, and on November 10, 2020, investors may finally receive the answers to their pressing EB-5 inquiries.

Starting November 10, Invest in the USA (IIUSA), an EB-5 trade association, is holding a two-week virtual conference on major EB-5 topics, including request for evidence (RFE) and denial trends, redeployment, and challenges caused by the COVID-19 crisis. In a typical year, such a forum would be hosted at an in-person venue, but due to the health regulations surrounding the COVID-19 pandemic, the trade association has opted to host 2020’s forum online. Featuring guest of honor speakers Sarah Kendall (chief of the Immigrant Investor Processing Office, or IPO) and Charles Oppenheim (chief of the Visa Control and Reporting Division at the U.S. Department of State), the virtual forum, insists IIUSA, promises to be just as engaging and informative as an in-person event.

The forum spreads five days of EB-5-related presentations and content across two weeks to better fit participants’ busy schedules. Participants need not be IIUSA members to join, but tickets for non-members cost around $200, while tickets for IIUSA members cost $150. One ticket provides access to all panels, so participants may freely choose when to tune in.

IIUSA members have also had the opportunity to send in questions for Sarah Kendall to answer during the forum. The questions touch on a number of EB-5 and IPO topics, such as the follow:

• Why are there incongruencies between the estimated processing time ranges and the historical national average processing times?
• What happens to investors with active EB5 investments who followed the former redeployment guidelines before they were modified in July 2020?
• Why does every EB-5 investor in a project have to submit project documentation even when there have been no changes to the project?
• Does United States Citizenship and Immigration Services (USCIS) anticipate furloughing employees due to budget constraints in FY2021?
• How will the IPO ensure states and regions with low populations, such as Maine, South Dakota, and Alaska, can continue to enjoy EB-5 regional center coverage in the face of rampant terminations related to activity level?

Interested investors may purchase a ticket and tune in to the virtual forum starting November 10 for a wealth of information on the EB-5 program and the direction of its next steps into a COVID-19-plagued world.

Foreign nationals making EB-5 investments to obtain U.S. green cards for themselves, their spouse, and their unmarried children below the age of 21 have enough to worry about between the long wait times for I-526 petition adjudication, the rampant EB-5 regional center terminations in 2019 and 2020, and the financial instability of United States Citizenship and Immigration Services (USCIS). So, unclear instructions for adjudicators that leave room for broad interpretations that could further delay I-526 approval, posing an additional hurdle for EB-5 investors to overcome, is hardly welcomed by the EB-5 world.

In May 2019, USCIS released new training materials for I-526 petition adjudicators. Believing that EB-5 stakeholders, such as those with an active EB5 investment or those operating an EB-5 regional center, should be privy to such information, Invest in the USA (IIUSA), an EB-5 industry trade association, filed a lawsuit against USCIS to publish the documents. Ultimately, USCIS released the documents only to IIUSA, who elected to offer them only to their own members as a member benefit.

The documents provide insights into the EB-5 adjudication process and can shed light on the decisions adjudicators make. In some cases, however, the adjudication instructions are not cut and dry, which can lead to confusion and inconsistent actions taken by the Immigrant Investor Program Office (IPO).

Confusion Around the Source-of-Funds Requirement

In 8 CFR 204.6 (g)(1) of the May 2019 EB-5 adjudicator training material, one can find the following paragraph:

“The establishment of a new commercial enterprise may be used as the basis of a petition for classification as an alien entrepreneur even though there are several owners of the enterprise, including persons who are not seeking classification under section 203 (b) (5) of the Act and non-natural persons, both foreign and domestic, provided that the source(s) of all capital invested is identified and all invested capital has been derived by lawful means.”

The wording of the clause is unclear: what does “all capital invested” mean? Commonly, it’s understood to mean all EB-5 capital invested by the applicant investor, and indeed, this is how most investors carry out their EB5 investment process. Nevertheless, some adjudicators interpret this cause as requiring all capital invested in the EB-5 project, including that of other EB-5 investors as well as non-EB-5 investors, to be documentarily derived from lawful sources.

Common sense dictates that any given EB-5 investor should not be responsible for the EB-5 investment capital of another EB-5 investor in the same project. Each investor is required to document the lawful source of funds for their own EB-5 capital, so USCIS can still uncover illegitimately acquired capital even if each investor does not document the sources of all capital invested in the project. No EB-5 investor should be penalized for the wrongdoings of separate, unrelated investors who happen to be involved in the same project. Similarly, the source of funds of non-EB-5 capital is outside of an individual EB-5 investor’s purview.

Nonetheless, this has not stopped some EB-5 investors from receiving requests for evidence (RFEs) based on broad interpretations of the above paragraph. In December 2019, one EB-5 investor received an RFE requesting government ID or business registration documentation for each other NCE owner, another investor was sent an RFE asking for ID and filed income tax returns for each other NCE owner, and another investor yet was the recipient of an RFE seeking ID and a comprehensive description of the business activities and bank statements of each other NCE owner.

EB-5 investors are not officially required to submit documentation and source-of-funds evidence pertaining to the EB5 investments of other NCE owners, but a broad interpretation of this paragraph by an adjudicator could mean significant stress and processing delays for investors. This unclear instruction opens the door to inconsistency and unfairness in the EB-5 process, leaving each EB-5 investor’s fate up to the interpretation of the particular USCIS adjudicator their petition lands with. With more attention called to this unfair practice, USCIS may clarify their instructions, but until then, EB-5 investors beware.

Foreign nationals who participate in the EB-5 Immigrant Investor Program have two pathways to make their EB-5 investment: directly in a qualifying EB-5 project or indirectly through an approved EB-5 regional center. The EB5 investment pathway doesn’t change the outcome for successful investments: U.S. permanent resident status for the investor and their immediate family members.

However, it does influence how the investment plays out. Those who invest directly are generally required to take on heavier managerial workloads at the new commercial enterprise (NCE), but in return, these investors can exercise more control over their investments. Conversely, those who make an EB-5 investment through a regional center approved by United States Citizenship and Immigration Services (USCIS) enjoy a smaller managerial obligation at the NCE and loosened job-creation requirements that facilitate the attainment of a U.S. green card.

These benefits make EB-5 regional center investment by far the preferred EB5 investment method of program participants. But it is important to bear in mind a few caveats. For example, the EB-5 Regional Center Program is not a permanent USCIS program—it’s only temporary and is continually extended by the government, leaving room open for potential termination in the future. Furthermore, the approved status of individual regional centers is not set in stone, either. USCIS routinely terminates previously approved regional centers, and in fact, it’s terminated a record number of regional centers in 2019 and 2020.

Regional Center Terminations in Numbers

The total number of approved EB-5 regional centers has fallen considerably since 2018, when the program boasted around 800 approved regional centers across the United States. The problems for regional center owners began in November 2019, when the Modernization Rule kicked in and changed the rules for targeted employment area (TEA) designation. The regulation also nearly doubled the minimum required investment amount to $1.8 million ($900,000 for projects in TEAs), resulting in diminished investor interest. With these two changes together, the rule spelled disaster for EB-5 regional centers, and the terminations began rolling in.

In March 2020, there were a total of 772 approved regional centers nationwide. March 2020 is also when the COVID-19 pandemic struck, crippling the economy, destroying jobs and livelihoods, and temporarily pausing routine visa processes at U.S. embassies and consulates. As the pandemic raged on, another 44 regional centers met their demise, bringing the total to 728.

By August 2020, the world had begun to reopen and U.S. embassies and consulates had introduced a phased resumption of visa processes, even though the COVID-19 pandemic continued to ravage various countries. The total number of approved EB-5 regional centers had dropped by 36, leaving only 692 approved regional centers.

Now, in October 2020, there remain only 678 approved EB-5 regional centers, down 14 from August. Though the pace of termination is slowing, there is no indication of the trend reversing anytime soon, and the number of approved regional centers is expected to continue its descension as 2020 comes to a close.

Careful Due Diligence Is Imperative

With more than 100 regional center terminations since 2018, countless EB-5 investors are facing severe complications in their EB-5 investment journey. The rapid pace of regional center terminations highlights the necessity for EB-5 investors to conduct meticulous due diligence on prospective regional centers.

When considering whether to make an EB5 investment through a particular regional center, prospective investors should consider a number of factors. Examining the track record of the regional center is imperative—what is the success ratio of previous investors? Is this project similar to previous projects the regional center has worked with? How many I-526 and I-829 petitions for investors working with the regional center in the past have been approved?

It’s also important to consider the details of the specific project and project developer. Has the regional center worked with this project developer before? What is the project developer’s track record? EB-5 investors should always consult an EB-5 immigration attorney to determine whether the project and regional center work for them and their EB-5 investment goals.

The United States boasts the largest economy in the world and is heralded as a beacon of freedom and liberty—so it’s no wonder foreign nationals from around the world dream of a new life in the United States. Unfortunately, for most, it’s but a pipe dream—immigration is difficult. Foreign investors with the necessary means, however, are in luck: an investment through the EB-5 Immigrant Investor Program can grant an investor and their immediate family members U.S. permanent resident status.

Join the Leading Global Economy

The United States’ stronghold on the global economy is no secret: the nation accounts for more than 24% of the global GDP, first by a large margin, with runner-up China claiming only around 16%. The 2019 Global Competitiveness Report also ranked the United States in second place after taking into consideration a number of factors, including institutions, infrastructure, labor market, business dynamism, innovation capacity, and more. Only Singapore outpaced the United States, which placed first in the 2018 rankings.

Major metropolises such as New York City and Los Angeles are hubs for business innovation, with talented professionals and entrepreneurs setting their sights on such global hotspots and establishing their successful companies in these jurisdictions. This makes such cities magnets for global talent and inspires even more innovation, further boosting the economic power of these areas.

Thanks to the EB-5 program, foreign investors from around the world can take advantage of the economic prowess of the United States. While other major developed countries, such as the UK, Canada, and Australia, also offer visa investment programs, they pale in comparison to the EB-5 program, which dramatically outranks them in terms of popularity. For an EB-5 investment of $1.8 million, or $900,000 if the project is located in a targeted employment area (TEA), foreign nationals can obtain a U.S. green card and forge a new life in the United States of America.

Enjoy a Top-Notch Legal System That Protects Intellectual Property Rights

In the United States, intellectual property rights are protected by strict laws, which fosters an innovative culture and results in a high proportion of inventors and entrepreneurs. Knowing that in the United States, their intellectual property will be stringently protected, the best and brightest of countries around the world flock to the United States to put their creative ideas into action. In fact, in 2015, a total of 52% of patents issued in the United States were granted to inventors born in other countries.

If you’re a foreign investor looking to launch an innovative new business, the legal protections the United States offers are invaluable. Copyrights, trademarks, and patents can safeguard your intellectual property and technology so you can ensure that you’re the beneficiary of your own creativity. To legally bind your employees to the protection of your intellectual property, you can issue non-disclosure agreements and licensing contracts.

Launching a business in the United States without resident status could be tricky, but with the EB-5 program, you can invest in permanent residency for yourself and your family, paving the way to set up your new business in New York, California, Florida, or anywhere else in the United States. It’s an investment not only in the United States but also in yourself, your family, your business, and your future.

Provide Your Children with a Cutting-Edge Education

The United States is by far the most popular destination for international students, and it’s no surprise why—the majority of the top universities are in the United States. An education at a leading U.S. institute of higher education can open all sorts of doors for young scholars with high aspirations, and a U.S. green card makes these opportunities all the more attainable thanks to benefits such as an easier admissions process and the potential for in-state tuition savings.

From Harvard University, to Massachusetts Institute of Technology, to Stanford University, to the University of California, Berkeley, the educational opportunities in the United States are truly high-quality, and any foreign national who wishes to offer their children a brighter future should be interested in U.S. universities like these. Educational opportunities are one of the driving forces behind EB5 investments—in fact, it’s common for parents to donate EB-5 investment capital to their children to make their own EB5 investment. This is a perfect solution when the parents don’t want to abandon their established life in their home country but wish to build a brighter future for their child.

The reasons to invest in the United States through the EB-5 Immigrant Investor Program are numerous, but in the end, it comes down to investing in a better future for yourself and your family. From lucrative business opportunities, to state-of-the-art educational institutes, to unparalleled freedom and security, the United States promises a better life for foreign investors around the world.

Foreign nationals who make an EB-5 investment in a qualifying EB-5 project must satisfy numerous requirements to be eligible for U.S. permanent residency, including providing evidence of the lawful sources of their investment capital and ensuring at least 10 new, full-time jobs for U.S. workers are created through their investment. One additional requirement that EB-5 investors must fulfill is proving on their I-526 petition that they will engage to some extent in the management of the new commercial enterprise (NCE).

To what degree must an EB-5 investor engage in the management of the NCE that they invest in? That depends on the EB5 investment pathway the investor has chosen. If an investor invests directly in an EB-5 project, they are typically required to take on a larger role, involving themselves in the daily managerial activities of the NCE. The benefit of this route is that it allows the investor to retain more control over their EB5 investment, making it the optimal pathway for EB-5 investors with significant managerial experience and who place high value on the financial returns on their EB-5 investment.

NCE Engagement in Regional Center Investment

Overwhelmingly, the EB-5 regional center investment route is the more popular way for foreign investors to participate in the EB-5 Immigrant Investor Program. The reasons investors prefer regional center investment are many—from easier job creation requirements to a higher likelihood of finding an EB-5 project in a targeted unemployment area (TEA), regional center investment offers numerous advantages.

One of the most popular incentives of the regional center route is the more passive managerial role investors may take on. Generally, if an investor works with a regional center to pursue an EB-5 visa, they need only join the NCE as a limited partner to satisfy the engagement requirement. As a limited partner, the EB-5 investor is involved in policy formulation and may vote on important business issues, but they do not have to sacrifice significant amounts of time to engagement at the NCE. In fact, an investor may choose to live in an entirely different state from their chosen EB-5 project—it’s possible to invest in an EB-5 project in Florida but live in Hawaii.

Each EB-5 project has its own project documents that lay out the responsibilities and rights granted to EB-5 investors. Investors, whether they’re making an EB-5 investment through a regional center or not, should work with an experienced EB-5 immigration lawyer to verify that the arrangement stipulated in the EB-5 project’s offering documents or agreements meet the EB-5 program requirements for investor engagement.

Whatever an EB-5 investor’s role is in the NCE, they must provide evidence of their involvement in the NCE on their I-526 petition. The I-526 petition is the first form an EB-5 investor files with United States Citizenship and Immigration Services (USCIS), marking their official embarkment toward an EB-5 visa. If USCIS deems the investor to satisfy all the EB-5 requirements, the I-526 petition will be approved, and the investor and their immediate family members may apply for U.S. conditional permanent resident status.

In September 2020, documentation regarding a May 2019 I-526 “reset training” held by the Investor Program Office for USCIS adjudicators was partially released. The I-526 petition is the form every foreign investor must submit to show they have invested the required capital in an eligible EB5 investment project, either directly or indirectly, through an EB-5 regional center. Documentation must also support that the enterprise will ultimately create the minimum number of full-time jobs required by the EB-5 investment program.

The long-awaited release of this training content comes on the heels of what was initially a Freedom of Information Act request and later a lawsuit due to the agency’s refusal of the request. While the first batch of training materials only amounts to a quarter of the training materials adjudicators were required to cover, 500 pages is certainly a start.

A key sticking point is that the judgment for that FOIA lawsuit only required the documents to be released to the party that filed suit (Invest in the USA, or IIUSA). IIUSA is an EB-5 industry trade association focused on benefiting U.S. workers and their communities (and thus the U.S. economy). Although they are a not-for-profit organization, IIUSA has unfortunately elected to limit access to the reset training materials solely to its members, meaning they are only accessible via the IIUSA Member Portal.

So, what do we know about the materials that have been released so far, and why are they important to EB-5 immigrant investors?

What Important Updates Have Been Released So Far

The first 500 pages of training materials covers quite a bit of ground, beginning with a series of I-526 and I-924 exercises designed to allow adjudicators to practice identifying scenarios in which they should deny deference to previously approved petitions and how to properly request additional evidence for questions surrounding sources and paths of funding. Sections of particular interest for foreign nationals executing an EB-5 investment include new content surrounding the following subject areas:

• At-risk capital
• Economic impact analysis
• Escrow arrangements
• Material changes
• Minor investors
• Non-EB-5 investors
• Path of funds
• TEA analysis

Why These Materials Are So Important for EB-5 Program Participants

Foreign investors spend years following immigration processes and requirements to enjoy a life in the United States. Training materials like these can provide valuable information for both program participants and the experienced legal teams with which they partner on an EB5 investment. These texts offer guidance, interpretation, and sample scenarios that are not provided anywhere else. Frankly, in the name of transparency, these U.S. government materials are exactly the type of information that should be available to the public at large – or at least to the foreign investors and other immigrants who are affected by any changes in the adjudication process.

While most content in these kinds of updates remains the same, nuances in the way USCIS adjudicators are trained to interpret existing policies and the precedents laid out in the presentations they are given can make a huge difference in the way final decisions on EB-5 investment petitions are reached. Not only do these training materials provide basic outlines of information, but interpreters may also glean additional insights from notable angles, emphasis, and even omissions of previously provided information.

When updates are made, those who prepare documentation for adjudicators’ review should be able to access the standards and perspectives adjudicators are asked to use for the documents. It saves time, energy, and resources not only for the immigrants submitting petitions for their EB5 investment but also for the adjudicators required to analyze them.

October 2020’s Visa Bulletin brings dismal news to EB-5 investors from China and Vietnam. Investors from the two backlogged countries must face an even longer wait for adjudication on their I-526 petitions, as the final action dates have not budged from the September 2020 Visa Bulletin. This could change dramatically in November 2020: October marks the beginning of FY2021, a year that will see far more EB-5 visas distributed than any year in the EB-5 program’s history since establishment in 1990. Each year, any unused family-based visas roll over to the EB visa category, and since the COVID-19 pandemic effectively halted immigration, a surge of unused family-based visas have been allocated to the EB-5 program in FY2021, putting the total at more than 18,500—nearly double the average annual number.

The Visa Bulletin for October 2020 is also unusual for an additional reason: when it was drafted, the EB-5 Regional Center Program had yet to be reauthorized. The Regional Center Program accounts for the vast majority of those with EB-5 investments, given that regional centers offer numerous advantages, including relaxed job-creation requirements. However, despite its popularity, it is not a permanent United States Citizenship and Immigration Services (USCIS) program, meaning it’s subject to expiration and reauthorization every so often. The program had been set to expire on September 30, 2020, but was reauthorized at the last minute.

Nonetheless, since the future of the EB-5 Regional Center Program was unknown at the time of publication of the October 2020 Visa Bulletin, all columns in the EB-5 Regional Center category in Charts A and B contain “U,” standing for “unauthorized.” Since the program was indeed reauthorized, investors can assume the final action dates and dates for filing for regional center applicants are the same as those for those with direct EB5 investments.

Final Action Dates

India remains current, having finally achieved the status in July 2020. The situation for Chinese and Vietnamese EB-5 applicants is less sunny: the final action dates for both countries have not moved since September 2020. For EB-5 applicants from China, the final action date is August 15, 2015. For those from Vietnam, it is August 1, 2017. EB-5 investors stuck in the queue will have to wait for November 2020’s Visa Bulletin to see whether the huge increase in available EB-5 visas will help them advance in their EB-5 journeys.

Dates for Filing

For Chinese EB-5 investors waiting to file their application for a U.S. green card, the wait continues. The Chinese date for filing remains December 15, 2015, where it has rested for the better part of a year. However, since the massive uptick in EB-5 visas in FY2021 offers an opportunity for USCIS to reduce the Chinese backlog, those stuck waiting to file may finally see progress in the coming months.