Every year, thousands of foreign nationals from around the world pour their dreams—and $1.8 million, or $900,000 if their selected project is in a targeted employment area (TEA)—into the EB-5 Immigrant Investor Program. Since 1990, the program has allowed countless foreign investors to obtain U.S. permanent resident status for themselves, their spouse, and their unmarried children younger than 21, as long as they invest enough money in a qualifying EB-5 project and meet various program requirements, including the creation of at least 10 full-time jobs for U.S. workers.

Program participants can choose to make their EB-5 investment directly in a project or indirectly via an EB-5 regional center. While both pathways, if successful, lead to the same outcome—a U.S. green card—the requirements differ slightly, and both pathways offer different advantages. Those with substantial managerial expertise may prefer to make an EB5 investment directly in a project because it allows them to participate directly in the day-to-day management of the new commercial enterprise (NCE) and exercise more control over their capital.

EB-5 regional center investment is, however, overwhelmingly the more popular option. Not only are regional center EB-5 projects more likely to be in TEAs, qualifying the investor for the lower investment amount of $900,000, but they also generally eliminate the need to be heavily involved in the NCE’s management by simply signing the investor on as a limited partner. Another major benefit of EB-5 regional center investment is softer requirements for job creation—indirect and induced jobs can be counted toward the 10-job requirement.

It is important to note that the EB-5 Regional Center Program is not a permanent program—since its instantiation, it has simply been renewed continually, for varying lengths of time. The EB-5 Regional Center Program was set to expire on September 30, 2020, but as the date approached, most EB-5 participants weren’t concerned—historically, the program has always been renewed.

Spending Legislation Passed by the House

On September 22, 2020, the House overwhelmingly passed a continuing resolution in a bipartisan vote. Called H.R. 8337, the Continuing Appropriations Act, the bill dealt with continuing government funding for a variety of critical government programs, including the EB-5 Regional Center Program. The legislation also encompassed the Emergency Stopgap USCIS Stabilization Act, which proposed expanding premium processing fees for some types of immigration. Such fee hikes are necessary to help United States Citizenship and Immigration Services (USCIS) stay afloat during a difficult time in which immigration has been largely halted due to the COVID-19 pandemic. USCIS already narrowly avoided a massive furlough in August 2020, scraping by thanks to reduced expenditure and increased revenue and receipts.

EB-5 Regional Center Program Extended to December 11, 2020

Late September 30, 2020, President Trump finally signed the continuing resolution the House had passed a week earlier in an overwhelming bipartisan victory. With that, several government programs were extended until December 11, 2020, including the EB-5 Regional Center Program. The passing of this bill allows the government to skirt a shutdown, which could be disastrous during a time of crisis catalyzed by the COVID-19 pandemic.

EB-5 investors and regional center managers may now breathe a sigh of relief, expected as this extension may have been. Come December 2020, investors, project developers, regional center owners, and others involved in EB-5 investment should tune into the latest EB-5 news to see whether the EB-5 Regional Center Program will be extended once again.

The COVID-19 pandemic has devastated the world, crippling economies, destroying livelihoods, and wreaking havoc on people’s physical and mental health alike. The EB-5 Immigrant Investor Program has not escaped the virus’s wrath, with thousands of investors unable to proceed with their EB-5 journey due to the temporary suspension of routine visa services at U.S. embassies and consulates.

However, the impact of the pandemic on EB-5 investors is not all negative—in fact, in certain ways, it has provided important advantages for those who have made EB-5 investments. From more EB-5 visas for investors from backlogged countries to a lower risk of EB-5 capital redeployment, for certain investors, it’s a good time to have an active EB5 investment. Investors with pending I-526 petitions or those with I-526 approval awaiting their visa interview are also in luck going forward: the number of available EB-5 visas for FY2021 has skyrocketed.

Annual Distribution of EB Visas

At the beginning of each fiscal year—October 1—United States Citizenship and Immigration Services (USCIS) earmarks a certain number of visas for the five EB programs. The EB-5 program, which has fifth-place preference, receives 7.1% of those visas. Typically, that results in around 10,000 EB-5 visas per year, which is generally enough to cover roughly 3,000 investors every year, considering that the majority also apply for EB-5 visas for their spouse and dependent children.

However, thanks to the wide-ranging effects of the COVID-19 pandemic and the subsequent lockdowns, FY2021 is different. Though the pandemic limited the number of EB-5 visas granted throughout FY2020, it also halted family-based immigration, and each fiscal year, any unused family-based visas from the previous year are rolled over to employment-based visas. In the average year, around 140,000 visas are made available through EB programs. In FY2021, the figure has almost doubled to 261,500. Of that, 7.1% is allocated to the EB-5 program, representing a visa budget of about 18,556 EB-5 visas.

Major Benefits to Chinese EB-5 Investors

While the huge increase in EB-5 visa allowance in FY2021 benefits everyone pursuing an EB-5 investment, it’s particularly beneficial to Chinese and Vietnamese EB-5 investors, who, as of October 2020, are the only foreign nationals subject to EB-5 backlogs. Due to the addition of Hong Kong EB-5 investors to the Chinese queue, the backlog has grown even larger, making the news of extra EB-5 visas even more welcome to Chinese EB-5 investors.

Every year, countries are entitled to up to 7% of the total number of EB-5 visas for the fiscal year. Since the number of available EB-5 visas has jumped so sharply in FY2021, so too has the number of visas available to a single country, increasing from roughly 700 to roughly 1,300. Furthermore, since USCIS estimates the number of pending I-485 petitions and documentarily qualified EB-5 visa applicants is significantly lower than 261,500, EB-5 investors can expect a large number of otherwise unclaimed EB-5 visas to be dished out to Chinese investors waiting in a several-year backlog. FY2021 is USCIS’s opportunity to dramatically reduce EB-5 backlogs, and it may be a great year for Chinese EB-5 investors, notwithstanding the switch to a visa availability processing approach in April 2020, which has, as of October 2020, negatively affected only investors from China.

The long processing times for EB-5 petitions at United States Citizenship and Immigration Services (USCIS) are no secret. EB-5 investors regularly have to wait years—as many as five for those from severely backlogged countries such as China—and as of October 2020, USCIS gives little indication of processing times decreasing. Besides the missed opportunity costs of delaying their new life in the United States, EB-5 investors face various downsides due to USCIS’s long processing times, including the possibility of their dependent children marrying and thus losing eligibility for a U.S. green card.

What can someone with an active EB-5 investment do if USCIS is taking an excessively long time to adjudicate their I-526 petition? Recourse for EB-5 investors stuck in USCIS processing limbo is limited—filing a case inquiry is possible but only if the petition was filed before USCIS’s date for case inquiry, which is displayed alongside USCIS’s estimated case processing time ranges. However, the listed date for case inquiry is so far back that it hardly encompasses any investors, virtually rendering it useless.

Filing a Writ of Mandamus

USCIS’s broken case inquiry system leaves filing a writ of mandamus as the only really viable course of action to force USCIS to adjudicate a pending petition. In the EB-5 context, a writ of mandamus is an order for USCIS to adjudicate a given I-526 or I-829 petition. EB-5 investors must be aware of the inherent danger of forcing USCIS to immediately adjudicate a petition: if there is insufficient or inconsistent information in the petition, USCIS will reject it rather than send a request for evidence (RFE), which offers an investor a second chance to salvage their EB-5 dreams.

Filing a writ of mandamus should be a last-resort measure in cases of excessively long wait times because it’s an expensive, risky endeavor that certainly doesn’t guarantee EB-5 success. Any EB-5 investor who feels that filing a writ of mandamus may be the right step for them is encouraged to consult their EB-5 immigration lawyer to review their situation and determine whether it’s a good idea. Additionally, EB-5 investors from backlogged countries—as of October 2020, China and Vietnam—must also keep in mind the naturally longer waiting times they must incur as a result of the high EB-5 demand from their country.

Precedent for Success in USCIS EB-5 Lawsuits

EB-5 investors may be concerned about filing a lawsuit against USCIS if their petition is still listed within the estimated processing time range. After all, USCIS can argue that their normal, or average, processing times are “reasonable.” However, two lawsuits against USCIS—Raju et al v. Cuccinelli and Keller Wurtz v. USCIS—show that judges disagree.

Together, the lawsuits included 11 EB-5 investors who had filed their I-526 petitions between 22 months and 29 months prior to the lawsuit date. Based on USCIS’s estimated processing time range, it’s far from abnormal to not receive an adjudication in such a time period, so by EB-5 standards, these investors were not facing excessively long wait times.

Indeed, USCIS chose to argue that delays of up to four years were “reasonable.” As evidence, they referenced their estimated case processing time ranges, which at the time spanned from 29.5 to 74.5 months (2.5 to 6.2 years). In both cases, the judges sided with the investors, arguing that the fact that USCIS takes just as long or longer to adjudicate other I-526 petitions does not prove that the waiting times are indeed “reasonable.” In this way, the judge essentially ruled that most of USCIS’s EB-5 adjudications are made with unreasonable delays.

Both judges also referenced the congressional decree that immigration applications should generally be processed in no more than 180 days. They argued that “reasonable processing times” should be counted in weeks or months, not years, and thus both lawsuits ended in victory for the EB-5 investors.

USCIS Already on Shaky Ground

These two defeats in court only add to USCIS’s hardships in 2020. Barely staying afloat financially, in August 2020, the immigration agency already narrowly avoided carrying out a major furlough where around 70% of its employees would have lost their jobs. Thousands of USCIS employees managed to hold onto their jobs thanks to reduced spending and upticks in revenue and receipts, but the longevity of these measures is unknown. The immigration body proposed filing fee increases for certain immigration petitions, including the I-526, I-829, and I-485 petitions, but the legislation was enjoined on September 29, 2020, costing USCIS millions in lost funds each day the proposal is enjoined.

Now, with the ruling of these two lawsuits USCIS may be forced to adjudicate EB-5 petitions faster. USCIS’s already unreasonably long processing times have only increased in 2020, with the agency citing the effort and changes made to avert the August 2020 furlough as reasons for further delays. However, the agency may have no choice but to straighten itself out and get to work on EB-5 petitions—the precedent set by the successes of these two lawsuits may inspire more applicants with active EB5 investments to file a writ of mandamus, and if judges continue to side with the investors, USCIS will find itself in hot water.

2020 has been a rocky year for just about everyone, individuals and organizations alike, and United States Citizenship and Immigration Services (USCIS) has suffered significantly due to the lull in immigration spurred on by the COVID-19 pandemic. Family-based visa processing has been largely suspended, President Trump’s immigration ban on most types of employment-based immigrants has slowed down immigration to the United States, and fear, travel restrictions, and scarcely available flights have curbed tourism. Against this background, it’s no wonder that USCIS, which largely funds its operations through filing fees, has been struggling to stay afloat.

In August 2020, fears of a massive USCIS furlough, which would see 70% of its staff let go, were rampant among U.S. immigration professionals and prospective immigrants. With only 30% of its workforce left, the immigration body would hardly have had the resources to continue adjudicating EB-5 petitions, such as Form I-526. Fortunately, to the relief of EB-5 investors everywhere, USCIS managed to narrowly avoid the scheduled furlough by cutting expenses and upping revenue and receipts. How long the agency can continue to avoid such dramatic measures is unknown.

To address its financial woes, in August 2020, USCIS announced the August 2020 Final Rule, which included plans to increase the filing fees of certain petitions, set to go into effect on October 2, 2020. Fees for forms I-526 and I-829, filed by those who make an EB-5 investment, were set to increase by $335 and $150, respectively, and fees for Form I-924, filed by those who wish to launch an EB-5 regional center, were supposed to jump up by a whopping $1,430.

August 2020 Final Rule Enjoined

On September 29, 2020, a district court enjoined the August 2020 Final Rule, preventing it from being implemented. Thus, USCIS filing fees did not increase as planned on October 2, 2020. While this may initially come as a relief to those planning to make an EB5 investment, it could spell a disastrous future for the immigration body.

USCIS Deputy Director of Policy Joseph Edlow warned the enjoinment could have grave consequences for USCIS and the future of U.S. immigration. Each day the fee hike is enjoined, USCIS loses millions of dollars, which may trigger a furlough like the one averted in August 2020. USCIS funds itself primarily through filing fees, and every two years, the organization conducts a fee review to determine whether the fees need to be adjusted and by how much. Thus, Edlow stressed, the fee increase is completely normal. In fact, USCIS is behind in its biennial fee reviews, and the proposed fee increases are smaller than they have been in previous years. Blocking the fee hike from taking place could harm USCIS’s long-term endeavors and is overall bad for the United States and its development.

In lieu of the proposed fee hike, USCIS is now obligated, under the new Continuing Appropriations Act, 2021 and Other Extensions Act (H.R. 8337), to increase premium processing fees. The legislation was signed into law on September 30, 2020, and covered the extension and funding of various government programs, including the EB-5 Regional Center Program. USCIS also has the option of adding more premium fees, but whether the organization will do so is as of October 6, 2020, unknown. Either way, EB-5 investors are not included in any of the listed case types for premium fees, so any changes to premium fees are not likely to affect EB-5 investors.

The Department of Homeland Security (DHS) has announced a new proposed rule change that would negatively affect the over one million international students currently in the United States. The Notice of Proposed Rulemaking; Establishing a Fixed Time Period of Admission and an Extension of Stay Procedure for Nonimmigrant Academic Students, Exchange Visitors, and Representatives of Foreign Information Media would replace a proven, flexible policy that brought millions of international students to the United States along with billions of dollars to the economy.

Studying in the United States has always been a dream of foreign nationals worldwide because of the exceptional post-secondary academic institutions, cutting-edge technology, and the freedom to share thoughts and ideas.

The current policy which has been in effect for decades, states that student visas are good for “duration of status,” which means students can stay in the U.S. indefinitely if they remain enrolled in school and comply with the terms and conditions of their immigration status.

Under the proposed rule, the DHS would set fixed terms of up to four years for student visas and all international students who wished to continue their studies beyond their authorized term would be required to file for an extension directly with U.S. Citizenship and Immigration Services (USCIS) or depart the country and reapply for admission with U.S. Customs and Border Protection (CBP). Students from countries with high visa overstay rates (greater than 10% for student and exchange visitors) and those who were born in or have citizenship from countries on the State Sponsors of Terrorism list will be limited to an initial two-year fixed period of stay in order to enhance monitoring, deter immigration violations, and encourage timely departure, the official statement said. Applications for extensions of stay could be approved “if the additional time needed is due to a compelling academic reason, documented medical illness or medical condition, or circumstance that was beyond the student’s control,” but the grounds for an extension are very limited.

According to the Trump administration, “this proposal would provide the DHS with additional protections and mechanisms to exercise the oversight necessary to vigorously enforce our nation’s immigration laws, protect the integrity of these nonimmigrant programs, and promptly detect national security concerns.”

Instead of worrying if or when this proposed rule goes into effect, there is currently a better and more flexible option—The EB-5 Immigrant Investor Program. The EB-5 Program offers foreign investors with the required capital a simple path to a U.S. Green Card and permanent residency. One of the many benefits of obtaining a green card is that permanent residents have a greater chance of being accepted to U.S. colleges and universities. With competition for international student spots at U.S. universities increasing, applying as a domestic applicant increases a student’s chance of admission by 350%. Additionally, green card holders can significantly lower tuition costs by qualifying for in-state college tuition, financial aid, and scholarships. Permanent residents also don’t have to worry about completing their studies in four years or less before being sent back home—because they are home.

By using gifted funds from family, an international student interested in pursuing an undergraduate or graduate degree can invest in his or her dream of a first-class education in the best university system in the world through the EB-5 Program. The program is open to anyone who can meet its requirements—investing $900,000 or $1.8 million in a new commercial enterprise, with the investment creating 10 full-time, permanent jobs for U.S. workers. Applicants don’t need to be sponsored by a U.S. employer, and they don’t need any specific knowledge, skills, or experience.

The value of a U.S. post-secondary education is multifaceted and cannot be overstated. It can be a life-changing experience for students from all over the world and will put them on the right path to professional success. An investment in the EB-5 Immigrant Investor Program is an investment in the future.

EB-5 investors who conduct proper due diligence are generally successful. Indeed, most EB-5 investors end their EB-5 journey by obtaining U.S. green cards for themselves and their immediate family members. That being said, each year, some EB-5 investors face denial, halting their dreams of a better life in the United States.

The reasons an EB-5 petition may be denied are manifold, but some are more common than others. Below are a few of the most common reasons EB-5 investors have their petitions rejected.

Investing less than required or investing in an ineligible project

The minimum required EB5 investment amount is $1.8 million, although this drops to $900,000 if the project is in a targeted employment area (TEA). If an EB-5 investor fails to invest the minimum required amount, their I-526 petition will be denied.

It’s also crucial to invest in a project that qualifies for the EB-5 program and, if you’re investing through an EB-5 regional center, to conduct thorough due diligence to ensure you work with a highly reputable developer and regional center. In 2019 and 2020, regional center terminations have skyrocketed, putting investors who fail to carefully vet regional centers before diving into an investment at risk.

Willfully misrepresenting information in an EB-5 application

Even if an EB-5 investor feels inclined to skew the facts to produce a better-looking application, they must resist the urge. If they intentionally misrepresent any material facts or otherwise submit a fraudulent EB-5 application, they may be permanently prohibited from obtaining a U.S. green card and may even be barred from entering the United States.

Not providing accurate or consistent information

It’s crucial to ensure the information an investor includes on their I-526 petition is as accurate as possible. Investors should collaborate with an experienced EB-5 immigration lawyer to gather all the necessary documentation and compile a suitable I-526 petition. Investors are also advised to double- and even triple-check all the information in their petition before filing it. While inconsistent information may lead to a request for evidence (RFE) rather than a denial, it’s best to prepare well in advance to avoid any delays.

One aspect of the I-526 petition that’s particularly tricky is the source-of-funds requirement. All EB-5 investors must demonstrate that their investment capital derives from lawful sources, but depending on the source of their funds, this can be a difficult and time-consuming endeavor. On the I-829 petition, filed later in the EB-5 process to remove the conditions of the investor’s permanent resident status, an investor must provide evidence that their EB-5 investment has remained “at risk” for the duration of the investment period, which is another area where meticulous care is warranted.

Children aging out or getting married

With an EB5 investment, a foreign national can secure a U.S. green card not only for themselves but also for their spouse and children. However, the ability to add children to one’s EB-5 application is contingent on the child being younger than 21 and unmarried, and the long wait times associated with the EB-5 program, especially for investors from backlogged countries, can complicate familial immigration matters.

For the purposes of immigration, the ages of dependent children of EB-5 investors are frozen until I-526 approval is granted, which means a child aged 21 or older may still be eligible for an EB-5 green card as long as they were younger than 21 when the I-526 petition was filed. However, in the case of delays in receiving a visa appointment—such as the closure of U.S. embassies and consulates due to a global pandemic—children are not protected from aging out. Similarly, the longer investors must wait for EB-5 approval, the higher the likelihood that a child will marry and become ineligible.

The ineligibility of a child won’t cause USCIS to deny the investor’s EB-5 petition for the entire family, but the child in question will not be qualified to receive permanent resident status in the United States, so it’s important for families to make careful considerations regarding their children.

Other reasons for denials

EB-5 investors may face denial for any number of other reasons as well, including health reasons, previous criminal convictions, or security-related concerns. EB-5 investors can get a more comprehensive idea of the reasons for potential denial on the U.S. Department of State – Bureau of Consular Affairs website.

What do you if you receive a denial?

Having your EB-5 petition denied is disheartening, but depending on the reason, it doesn’t necessarily mean your EB-5 dreams are over. USCIS should specify the reasons for denial, giving the investor a clear picture of the situation and what they did wrong (if anything). EB-5 investors still have various options, including filing an appeal or seeking alternative immigration pathways, if their EB-5 petition is denied. Consult an experienced immigration attorney to determine the best solution for you.

The U.S. Second Circuit Court of Appeals published its decision allowing the Department of Human Services (DHS) to recommence the implementation of the Public Charge Ground of Inadmissibility final rule on September 11, 2020. According to an alert from United States Citizenship and Immigration Services (USCIS), the decision stays the injunction, which was issued in late July 2020, that prevented the public charge final rule from being enforced during a national health crisis (the COVID-19 pandemic).

The final rule is legislation that outlines requirements pertaining to grounds of immigrant inadmissibility based on current or projected status as a public charge. Because the EB-5 program is designed as a path into the United States for qualified immigrant investors – some of whom do have an opportunity to use public services – it is imperative to understand how this decision can affect them.

In this article, you will learn what the U.S. government deems a public charge, which government benefits are included in the public charge final rule, how it can impact their form I-485 adjudication, and ultimately what it means for their EB-5 investment processing.

Determining Whether an Immigrant Will Be a Public Charge

The Immigration and Nationality Act (INA) says that when an immigrant seeks admission into the United States (or to adjust their status to lawful permanent residence), they may be deemed inadmissible if “at the time of application for admission or adjustment of status, [they are] likely at any time to become a public charge.” This translates to a denial of admission or of their petition for adjustment in status. So who, then, is considered a public charge according to the final rule?

Public Benefits Outlined by the INA

When an immigrant is evaluated as someone who is more likely than not to receive one or more of a specifically outlined set of public benefits at any time in the future for more than 12 months in a three-year period, they would be classified as inadmissible. Generally speaking, the public benefits included under this rule are as follows:

• Income maintenance from federal, state, local, or tribal programs issuing cash benefits
• Public housing
• Medicaid benefits
• Section 8 housing or rental benefits
• SNAP benefits (the Supplemental Nutrition Assistance Program)
• Supplemental security income
• Temporary assistance for needy families

There are two types of applicants most often included: those seeking admission or adjustment of status to lawful permanent residence and non-immigrants who would like to either extend their non-immigrant stay or change their nonimmigrant status in some way.

None of the above-outlined considerations alone will make any immigrant inadmissible other than not providing a sufficient affidavit of support. If you have questions regarding whether a particular set of government benefits are considered applicable to the new legislation, reach out to an experienced EB5 attorney for answers. In the meantime, read on for other considerations adjudicators make when determining whether an immigrant may or may not need to access these benefits in a significant way.

Factors in Determining the Likelihood of Becoming a Public Charge

The factors considered during the adjudication process run the gamut of an immigrant’s circumstances. Here are the most common:

• An applicant’s age and general health
• Their family status
• The assets, financial situation, and access to resources they have
• Their educational background and skillsets
• What their prospective immigration status is and the expected period of admission
• A sufficient affidavit of support

Foreign investors in the EB-5 program (and their qualified family members) who are nearing the end of their investment term sometimes fall under the category of those seeking to adjust their immigration status. Form I-485 and Form I-829 are the specific petitions most likely to be affected by the 2nd Circuit decision, as they are an EB-5 investor’s applications to a) adjust their status from non-immigrant to conditional immigrant status and then b) remove those conditions.

The following is a quick refresher on EB5 program basics, an explanation on when Form I-485 comes into play, and how delays in I-485 processing affect I-829 petitions.

EB-5 Investor Basics and When Form I-485 Comes into Play

The EB-5 Immigrant Investor Program is a pathway to an employment-based visa in the United States. It was created by Congress, was enacted in the 1990s, and is still administered today by USCIS. It was developed as an effort to stimulate the U.S. economy and designed to provide green cards and a path to citizenship to qualified foreign investors. Immigrant investors who are able to infuse lawfully obtained foreign capital into EB-5 program-approved projects around the country in a way that meets all program requirements, especially job creation, can obtain green cards for themselves and their immediate family members.

To gain U.S. permanent resident status through the EB5 program, foreign nationals must meet the following minimum requirements:

• Invest a minimum of $1.8M in a new commercial enterprise, or a reduced amount of $900K if the project is in a designated TEA (targeted employment area).
• This capital must prove it has effectively created a minimum of 10 new and sustainable full-time jobs for U.S. workers.
• All project funding must have been lawfully sourced (and proven as such), and the capital is required to remain “at risk” throughout the investment period.

Although this path to a U.S. green card is straightforward and quicker than most other available options, each part of the investment process has its own set of requirements and can be quite complex. Putting together an I-526 petition—the first petition an EB5 investor files—can be complicated and time-consuming, especially in regard to the source-of-funds requirement. In a later-stage example, when an investment period is extended beyond an investor’s funding terms, often it is most beneficial for them to redeploy their capital in order to maintain the required at-risk status.

Partnering with an experienced EB-5 attorney and using available resources, like the EB5AN TEA map or the EB-5 Project Risk Assessment Questionnaire, can greatly improve an investor’s experience and help them manage the expectations of qualifying family members along the way.

Regarding the recent court decision, there are seven basic steps in the EB-5 process, and the 2nd Circuit Court’s stay is most likely to affect foreign investors in the later stages of EB-5 processing. Specifically, investors who have met all of their investment requirements and have sought to update their status through USCIS form I-485 may have experienced a denial between July 2020 and now. Learn more below.

USCIS Form I-485: An Overview

Via Form I-485, EB-5 participants who are already in the United States can petition USCIS to update their immigration status to a conditional permanent resident. Only after an applicant’s I-526 petition is approved may they file an I-485 petition for this adjustment in status. Questions on the application pertain to biographical information USCIS will use to determine whether an applicant is eligible for permanent residency, and it is typically filed by the applicant’s EB-5 attorney.

Information Included in the I-485 Petition

Information requested can include but is not limited to:

• All biographic details as required by Form G-325A
• Biometric service documents like fingerprints, photograph, and signature
• Copies of passport pages and all documents showing U.S. status has been maintained
• Criminal history
• Evidence of the approval received for their I-526 petition (Form I-797C)
• Familial certificates including birth, marriage, and divorce certificates
• Medical exams and vaccination records

Fees to Accompany Form I-485

An investor must also include application and biometric requirements fees with their Form I-485 submission. Note that when an applicant is age 78 or older, the biometric fee is waived. Additionally, USCIS application fees were set to change in early October 2020. As of this writing, a judge has imposed a temporary delay on the fee change, but that could change at any time. The current application fee for I-485 petitions is $1,140 per submission, but under the new rules, that fee would be reduced by $10. Depending upon an EB-5 participant’s current address, the application will be mailed to the lockbox facility for USCIS in either Texas or Arizona.

Estimated Processing Times on I-485 Petitions

Adjusting your residency status in the United States is a big step, and not just philosophically. The wait can be long (and difficult), as well. Form I-485 processing times vary significantly based on factors such as proper filing and documentation and USCIS’s caseload in a given area. That said, here is a brief outline of the typical waiting period for each step after filing a Form I-485:

• 2 TO 3 WEEKS: Notice from USCIS confirming the receipt of an application
• 3 TO 5 WEEKS: USCIS notice assigning the biometrics appointment
• 5 TO 8 WEEKS: The biometrics screening appointment (not the interview)
• 12 TO 16 WEEKS: Petitioner receives their EAD card, if applicable
• 4 TO 10 MONTHS: Notice from USCIS to attend an adjustment-of-status interview
• 6 TO 12 MONTHS: The adjustment-of-status interview

During an EB5 investor’s adjustment-of-status interview, one of the considerations made is whether there is any likelihood that they will become a public charge. If there is a concern, the I-485 petition may be denied.

Otherwise, between 8 and 12 months, when USCIS determines an applicant eligible, they are granted permanent residence. In the case of EB-5 investors, two years after securing conditional permanent resident status (if they have met all pertinent program requirements), they must file an I-829 petition to have those conditions removed.

If you are an EB-5 investor who has been impacted by this recent legislation and has ultimately had an I-485 petition denied, here’s how an attorney can help.

Foreign investors interested in relocating to the United States and obtaining U.S. permanent resident status are fortunate that the EB-5 Immigrant Investor Program, one of the easiest and quickest pathways to U.S. immigration, remains in full swing even after 30 years. The program offers foreign investors U.S. green cards in exchange for an investment in a qualifying EB-5 project, as long as the EB-5 investor can prove their investment resulted in the creation of a minimum of 10 new full-time jobs for U.S. citizens or residents.

To qualify for the EB-5 program, an investor must commit a certain minimum amount of capital to their chosen EB-5 project. In general, the minimum required investment amount is $1.8 million, but if the project is in a targeted employment area (TEA), the required amount drops to $900,000. Most EB-5 investors prefer this lower amount, but United States Citizenship and Immigration Services (UCSIS) does not automatically designate areas as TEAs. Rather, USCIS provides a set of criteria and methodologies, and EB-5 investors must demonstrate TEA eligibility on their I-526 petition.

EB5AN, a leading EB-5 consulting firm and regional center operator, has launched an interactive EB-5 TEA map to assist prospective EB-5 investors with locating qualifying TEA EB-5 projects. TEAs are divided into two variants—high-unemployment TEAs and rural TEAs—and EB5AN’s TEA map constitutes an easy-to-use tool that helps investors locate both types of TEA projects.

High-Unemployment TEAs

High-unemployment TEAs are areas that have an unemployment rate at least 50% higher than the national U.S. average. Only urban areas may qualify as high-unemployment TEAs—otherwise, the area may qualify as a rural TEA.

USCIS allows EB-5 investors to choose between four different methodologies to calculate whether an area qualifies as a high-unemployment TEA. The first is the American Community Survey (ACS) method, which examines five-year ACS data by census tract. The second is the census-share method, which combines the five-year ACS census tract data with county-specific data from the Bureau of Labor Statistics (BLS). Finally, the third is the county-level method, which applies BLS data to calculate unemployment in a single county.

Fortunately for EB-5 investors, USCIS is flexible about TEA designation, so even if a particular census tract doesn’t qualify, investors can group together directly adjacent tracts to form a high-unemployment TEA. EB5AN’s TEA map automatically combines adjacent census tracts to create qualifying TEAs, drastically facilitating the investor’s job.

Rural TEAs

Rural TEAs are more straightforward than high-unemployment TEAs. To ascertain rural TEA eligibility, EB-5 investors should use U.S. Office of Management and Budget data to determine geographical boundaries and population data from the most recent 10-year census to determine population levels. To qualify as a rural TEA, a region must be located outside a metropolitan statistical area (MSA) and have a population of less than 20,000. If the population of the area grows beyond 20,000 after the investor submits their I-526 petition, USCIS will still consider the area a valid rural TEA.

Using the EB5AN TEA Map

One of the most significant features of EB5AN’s TEA map is the ability to generate an I-526-ready formal TEA qualification report. If an EB-5 investor is pursuing the lower investment amount of $900,000, they are required to demonstrate in their I-526 that their EB-5 project is in a qualifying TEA, and putting together the documentation and report to prove this is time consuming and complex. Thus, EB5AN’s ready-made formal TEA qualification report is a major time and effort saver for EB-5 investors.

Determining TEA eligibility is a tedious and complicated process, but EB5AN’s TEA map makes it easy for EB-5 investors to see whether their EB-5 project qualifies for TEA status. By highlighting qualifying TEA regions, the map allows EB-5 investors to locate qualifying TEAs all across the United States. By automatically combining adjacent census tracts to create custom TEAs, EB5AN’s map takes most of the guesswork out of TEA calculations.

The EB5AN map also displays whether a given TEA is covered by one of EB5AN’s 14 regional centers. Regional center investment is popular because it frees EB-5 investors from the requirement of participating in the day-to-day management of the new commercial enterprise (NCE) and relaxes the job-creation requirements, making it easier to obtain a U.S. green card. For project developers, this feature also indicates whether affiliation with an EB5AN regional center is possible.

The EB-5 program is a relatively quick and simple pathway to U.S. immigration for foreign nationals around the world, and EB5AN’s TEA map makes the process that much easier. Prospective EB-5 investors and project developers can use the innovative tool to help them plan their EB-5 investments and projects.