In August 2020, United State Citizenship and Immigration Services (USCIS) split up its estimated processing time range for I-526 petitions into two categories: one for Chinese EB-5 investors and one for investors from any other country. Given that the Chinese EB-5 backlog is massive, with the switch in April 2020 to a visa availability processing approach, the distinction makes sense—Chinese investors may be subject to significantly longer waiting times for I-526 adjudication.

Strangely enough, however, checking the estimated processing times for I-526 petitions on the USCIS website presents users with three time ranges—one for Chinese investors, one for investors from all other areas, and one unspecified time range. With no calculation formula provided, the unidentified time range doesn’t appear to be an average of the other two, making its very existence mysterious. Furthermore, USCIS does not appear to have updated their calculation methodology to reflect the changes in the processing approach, considering that they have left the line “we generally process cases in the order we receive them” unchanged, just as it was under the previous first-in-first-out (FIFO) approach.

Most concerning, however, is the case inquiry dates. At June 29, 2014, for Chinese investors and September 26, 2015, for rest-of-world investors as of September 14, 2020, EB-5 investors must wait five to six years before they’re allowed to inquire about the abnormally long processing times of their I-526 petition. According to the historical processing data, the average processing time for I-526 petitions in FY2020 until June 30, 2020, has been a mere 13.7 months—a far cry from five or six years.

The upper limit for both time ranges also seems strange—both seem far too high to be plausible. Based on country-specific case receipt data USCIS published in October 2018 and subsequently removed in July 2019, assuming USCIS processed I-526 petitions according to the FIFO approach right up until April 2020, the global backlog should have been cleared up to April 2017. That isn’t compatible with the Chinese estimated time range of 54 to 75 months, which would put the receipt date of Chinese I-526 petitions under processing between May 2014 and February 2016. If all these figures add up, USCIS is essentially saying it’s not processing Chinese I-526 petitions.

The calculation that the global backlog should have been cleared up to April 2017 by April 2020 also sheds new light on USCIS’s case inquiry dates of June 29, 2014, and September 26, 2015. If the backlog really was cleared up to April 2017, hardly any EB-5 investors—if any at all—are eligible to file case inquiries. With nontransparent estimated processing time ranges, USCIS seems to be almost entirely preventing case inquiries into its long processing times.

In the EB-5 Immigrant Investor Program, investors have two options for investment: direct investment and regional center investment. While investors can retain more control over their investments through the direct route, engaging in day-to-day management work at the new commercial enterprise (NCE), regional center investment is by far the more popular option. Not only are regional center projects more likely to be located in targeted employment areas (TEAs) and thus qualify for a lower investment amount, but they also offer relaxed job creation requirements, making it easier to qualify for an EB-5 green card.

Despite the popularity of regional centers, the EB-5 Regional Center Program is not permanent in the law. Since 2015, Congress has continually reauthorized the program for periods of one year or less, announced alongside continuing resolutions to fund the program. The program is set to expire on September 30, 2020, but a continuing resolution is in the works and is likely to include a new reauthorization of the program.

Previous reauthorizations have extended the program’s validity without introducing any changes, and it’s expected that the next reauthorization will not bring any changes to the program, either. With the expiration date a mere two weeks away, there isn’t enough time to introduce comprehensive legislation to change the EB-5 program.

EB-5 investors interested in working with regional centers shouldn’t fear this expiration date—in all likelihood, they will be able to proceed with their regional center investment. By far the most popular way to invest in the EB-5 program, the Regional Center Program is not expected to end anytime soon.

Why Invest through a Regional Center?

Even if the Regional Center Program were abolished, the EB-5 program would continue on, albeit with potentially diminished interest from investors. In direct investments, the investor must participate in the daily management of the NCE. This gives the investor more control over their investment but constitutes a major turn-off for investors with little managerial experience or other commitments.

In a regional center investment, investors can generally satisfy the requirement of active participation in the NCE by signing on as a limited partner. While they will be obligated to vote on certain company matters, for the most part, they are uninvolved in the NCE’s operations and even have the freedom to live on the opposite end of the country.

Another important advantage of regional center investment is the relaxed job creation requirements. To receive unconditional permanent resident status in the United States, an EB-5 investor must prove their capital funded the creation of no fewer than 10 full-time jobs for U.S. workers within their two-year conditional permanent residence period. In direct investments, EB-5 investors may only count direct jobs (i.e., those on the payroll of the NCE or directly involved in the construction of the building). In regional center investments, investors may also count indirect jobs (jobs funded by the NCE’s expenses on products and services) and induced jobs (jobs funded by the NCE’s employees spending their wages in the community).

The EB-5 program was a boon to the U.S. economy during the recovery from the Great Recession in 2008. Now, in September 2020, as the nation begins to emerge from the economic damage inflicted by the COVID-19 pandemic, the EB-5 program can once again boost the economy and help create much-needed jobs to help the American people regain their footing.

The EB-5 Immigrant Investor Program is one of the fastest and easiest pathways to permanent resident status in the United States—eligible investments can qualify investors and their immediate family members for U.S. green cards. However, the program is fairly complex, and prospective investors are advised to familiarize themselves deeply with the program before diving into it. Investors typically have various questions about the investment requirements and what the program entails, and this article answers some of the most common questions prospective EB-5 investors ask.

1. How much do I have to invest for an EB-5 visa?

EB-5 investors must invest a minimum required investment amount in a qualifying EB-5 project to attain their U.S. green card, although they may choose to invest more if they wish. The default minimum required investment amount is $1.8 million, but if the project is located in a targeted employment zone (TEA), the minimum required amount drops to $900,000.

TEAs are defined as high-unemployment or rural areas that stand to particularly benefit from the foreign investment capital that EB-5 investors bring in. If an investor invests the lower required amount, they must demonstrate on their I-526 petition that the project meets the requirements for TEA designation by providing data on the region’s unemployment rate or population. TEA projects can work as both direct-investment projects and regional center projects, but they’re easier to find through regional centers. Regional centers concentrate on TEA projects because of their heightened attraction for EB-5 investors.

2. When will my EB-5 investment capital be returned?

One of the requirements of the EB-5 program is that investment capital remains “at risk” for the duration of the investment period (i.e., the investor’s two-year conditional permanent residence period). Therefore, an EB-5 investor’s funds will be tied up for at least two years. However, specifications in the particular project can delay repayment, and some investors don’t see their capital returned for five years or more.

EB-5 investors should carefully read through the documentation of prospective projects and regional centers so they fully understand the terms and conditions of repayment. Some regional projects return the capital in full and others only partially. The most important step a prospective EB-5 investors can take is conducting thorough due diligence to ensure a particular project meets their financial and immigration requirements.

3. Are EB-5 investments safe?

All EB-5 investments must be “at risk,” but that doesn’t mean they have to be risky investments. To be considered “at risk,” an EB-5 investment must incur both the possibility of loss as well as the chance for gain. Investors should carefully study prospective EB-5 projects and regional centers to determine the level of financial and immigration risk an investment with them would entail. The previous track records of regional centers and developers are often a strong indicator of future success, so look for experienced regional centers and developers with a history of successful EB-5 projects.

4. Can I get a loan to fund my EB-5 investment?

Loans are an appropriate source of funds for an EB-5 project and are typically secured with assets the investor owns as collateral. In essence, EB-5 investors can use any source of funds for their investment, including donations from family, but they must prove the capital came from lawful sources. In the case of a loan secured by personal assets, the investor must document the lawful sources of the assets.

5. How does USCIS decide which EB-5 applications to prioritize?

Until April 2020, United States Citizenship and Immigration (USCIS) used a first-in-first-out (FIFO) approach to determine which EB-5 petitions to adjudicate. Petitions were adjudicated in the same order they were received, regardless of the investor’s country of origin.

In April 2020, USCIS switched to a visa availability approach, which prioritizes EB-5 applicants based on the investor’s country of origin. Certain countries—China and Vietnam, as of September 2020—are subject to long backlogs due to high EB-5 demand, and since each country is only allotted about 700 EB-5 visas per year, the FIFO approach had adjudicators working on EB-5 petitions whose applicants weren’t immediately eligible for an EB-5 visa. Under the visa availability approach, USCIS adjudicates petitions based on whether the applicant’s country has visas immediately available.

To determine which countries to exclude, USCIS uses Chart B of the monthly Visa Bulletins. As of September 2020, China is the only country not “current” in Chart B, which means currently, only Chinese EB-5 investors are negatively impacted by the visa availability approach.

On April 22, 2020, President Trump signed into law an executive order that temporarily suspended various types of immigration for 60 days, spurred on by the COVID-19 pandemic. Two months later, upon the expiration of the proclamation, he expanded the classes of immigrants it covered and extended the ban until the end of 2020, citing the need to save jobs for U.S. citizens and residents.

Among the visa types affected are H-1B visas, one of the most popular work visas. This decision leaves thousands of hopeful immigrants without a pathway into the United States for a better, freer life, and with most other work-based immigration pathways also prohibited, the situation seems hopeless. But there’s still a way: the EB-5 Immigrant Investor Program.

What is the H-1B Visa?

The H-1B is among the most popular work-based visas. Foreign nationals with specialized education and skills who attain sponsorship from a U.S. employer may apply for the visa, although due to the demand, approved applicants are then put through a lottery system. The visa allows a foreign worker to stay in the United States temporarily and work for their sponsor. Each year, 65,000 H-1B visas are available, but the immigration ban complicates matters in 2020.

Companies across the United States, particularly tech companies, were outraged at the ban, as it would have significant impacts on their businesses. On August 12, 2020, limited exceptions to the immigration ban were announced, granting exemptions to foreign national workers whose presence in the United States is deemed to be in the national interest, whether to help combat COVID-19 or aid in the rebuilding of the U.S. economy.

However, exemptions are difficult to achieve, and thousands of H-1B applicants in 2020 are still having their petitions denied. The National Foundation for American Policy (NFAP), the majority of top companies in the United States experienced at least a 10% increase in H-1B denial rates. NFAP data also shows an H-1B denial rate of 29% in 2020, compared to just 6% in 2015.

The EB-5 Program as an Alternative

EB-5 investors have escaped the immigration ban, making it a solid alternative to the H-1B visa. And an H-1B visa can be converted to an EB-5 visa—good news for H-1B visa holders affected by the immigration ban. The EB-5 program grants foreign investors U.S. green cards in exchange for an investment in a qualifying EB-5 project. Investors must commit at least $1.8 million to an EB-5 project, unless it is located within a targeted employment area (TEA), in which case they need only invest $900,000.

Investors can use any number of funds as EB-5 capital, from employment income, to funds from the sale of assets, to money gifted by their parents. EB-5 investors can also choose between a direct investment and a regional center investment. With a direct investment, the EB-5 investor must engage in day-to-day management at the new commercial enterprise (NCE), which allows them to retain more control over their investment. Investors with less managerial experience or who simply desire more freedom are advised to invest via a regional center, which frees them from the need to be actively involved in the NCE’s management.

Whether an investor invests in a direct EB-5 project or in a regional center project, and whether they invest $1.8 million in a non-TEA project or $900,000 in a TEA project, the outcome is the same: U.S. green cards for the investor, their spouse, and their unmarried children younger than 21. This makes the EB-5 program preferable to an H-1B visa, which only offers temporary residency rights. EB-5 visa holders are also unrestricted in their freedom to work anywhere in the United States, whereas H-1B visa holders must confine themselves to working for their sponsor. For those interested in U.S. citizenship, the EB-5 visa also offers a pathway to naturalization: after five years of permanent residency, an EB-5 investor may apply for U.S. citizenship.

When the COVID-19 pandemic swept across the globe in early 2020, it disrupted the lives of nearly everyone on the planet. With mass lockdowns and public life shutting down in most countries, the pandemic has shattered economies, destroyed livelihoods, and ripped families apart, as well as led to thousands of deaths. For investors in the EB-5 Immigrant Investor Program, the temporary suspension of routine visa processes at U.S. embassies and consulates has delayed their journey toward a U.S. green card, representing an obstacle to their plans of a life of freedom in the United States.

However, the pandemic’s impact on the EB-5 program is not all bad. EB-5 investors stand to benefit in a few ways from the impacts of the pandemic and the responses to it.

Possibility of Extra EB-5 Visas in FY2021

The EB-5 program isn’t the only area of immigration that’s been severely affected by the COVID-19 pandemic. Notably, family immigration visas have also experienced a major slowdown, with thousands of family-based visas unlikely to be issued before FY2020 ends on September 30, 2020. This matters to EB-5 investors because any unused family-based visas are carried over to employment-based immigration programs in the next fiscal year, meaning the unused family visas translate into thousands of extra EB visas in FY2021. EB-5 investors are entitled to 7.1% of EB visas, which could result in a substantial boost in EB-5 visas in FY2021.

Each year, any unused EB-5 visas are carried over to the EB-1 program in the following year, and United States Citizenship and Immigration Services (USCIS) may be left with thousands of unissued EB-5 visas at the end of FY2020. However, the gain from the family-based visas is expected to be considerably larger, offsetting any losses the EB-5 program experiences in FY2020. Each month, 40,000 family-based visas are available, so for each month no family-based visas are granted, the EB-5 program gains another 2,840 visas. Considering that families, just like EB-5 investors, have been unable to receive visas for months due to the closures of U.S. embassies and consulates, EB-5 participants can expect the largest visa boost in the program’s history.

More Leftover Visas for Backlogged Countries

Chinese EB-5 investors have long borne the brunt of EB-5 backlogs. With only three countries—China, India, and Vietnam—ever experiencing backlogs in the program’s history, China outshines the rest by a long shot, with Chinese EB-5 investors regularly waiting as long as five years for I-526 adjudication. While the Indian EB-5 final action date advanced by leaps and bounds in early 2020 and became current in July 2020, signaling the end of the Indian backlog, Chinese investors still suffer through extremely long wait times.

Adding to the hardships for Chinese EB-5 investors in 2020 is addition of Hong Kong investors to the Mainland backlog, following an executive order signed in July 2020 in response to a controversial security law introduced to the autonomous zone by Beijing authorities. With Hong Kong no longer receiving special treatment for U.S. immigration purposes, Hong Kong EB-5 investors are now treated as Chinese applicants, increasing the wait times for investors from both regions.

The good news is the lower number of EB-5 visa petitions in 2020, which increases the number of EB-5 visas left over for Chinese EB-5 investors. Each country is only entitled to approximately 700 EB-5 visas per year, but any leftover visas are granted to investors from backlogged countries, generally China. The Chinese EB-5 investors who have been waiting the longest for their U.S. green cards may benefit from this phenomenon in 2020.

Lower Risk of Redeployment of EB-5 Capital

One of the key requirements of the EB-5 program is that the invested capital must remain “at risk” throughout the duration of the investment period, which means it must incur both the opportunity for gain and the risk of loss at all times. Any EB-5 investor’s capital will be “at risk” for at least two years, the duration of their conditional permanent resident status. However, depending on when the funds are released from an escrow account to the new commercial enterprise (NCE), an investor’s EB-5 capital may actually need to be invested for four or five years.

The problem with such long investment periods is that they often exceed the time necessary to pay back the EB-5 capital. When an EB-5 project is completed and sold or refinanced, the EB-5 capital must either be paid back to the investors or redeployed in other projects, but investors who have not yet filed their I-829 petition to remove the conditions from their permanent resident status must maintain the “at risk” status of their EB-5 capital. Thus, they have no choice but to redeploy the capital in other projects, without ample time to scrutinize or analyze the new projects, putting them at financial risk.

Under these circumstances, the difficult operating and construction environment brought on by the pandemic is a good thing. Many projects have had to halt construction or operations for months, but the clock for EB-5 investors keeps ticking. This means EB-5 investors have incurred a lower redeployment risk throughout the pandemic, potentially saving them from rash, risky investments they would have otherwise had to make.

The Immigration Ban Benefits EB-5 Investors

On April 22, 2020, President Trump signed into law a proclamation temporarily banning most forms of immigration for 60 days. EB-5 investors were exempt. A handful of senators who saw the ban as too lenient penned an open letter to the president requesting that the ban be extended to EB-5 investors, citing common misconceptions about the program, such as rampant fraud.

Fraud does occur in the EB-5 program, but it is rare, and the program’s benefits to the U.S. economy and U.S. workers far outweigh the risks. Fortunately, Trump seemed to agree, because when the ban was extended, effective June 24, 2020, until the end of the year, it was expanded to include new classes of employment-based immigrants, but EB-5 investors remained exempt.

The immigration ban is good for EB-5 investors. As of August 2020, U.S. embassies and consulates have begun a phased resumption of visa services, and although each office differs depending on local circumstance, this means many EB-5 investors are now or will soon be eligible for visa interviews to receive their U.S. green cards. With most immigration pathways temporarily suspended, EB-5 investors are likely to experience shorter wait times and may receive their visas faster than in normal times.

In August 2020, news that United States Citizenship and Immigration Services (USCIS) would be furloughing around 70% of its employees (over 13,000 people) has long been floating around the EB-5 sphere. The furloughs would have likely dramatically impacted a wide range of immigrants, from K-1 fiancé(e) visa applicants to investors in the EB-5 Immigrant Investor Program. The impacts of such a furlough could have been devastating for EB-5 investors, who have already suffered immensely in 2020 due to the COVID-19 pandemic and the related U.S. embassy and consulate closures, which prevented many of them from receiving visa interviews for their U.S. green cards. To the relief of EB-5 participants worldwide, on August 25, 2020, USCIS announced that the planned furlough would be averted.

USCIS is responsible for processing applications for immigration into the United States, including EB-5 applications such as Form I-526. One of the key services USCIS provides is visa and green card services, processing applications for not only EB-5 investors but any kind of prospective immigrant into the United States, whether for professional or familial reasons. Already, USCIS has had to increase various processing fees to cover its operating costs, having taken a major blow from the fallout of the COVID-19 pandemic and President Trump’s immigration ban. With 70% of its workers furloughed, the agency would have hardly had the resources to continue adjudicating immigration petitions.

The furlough was originally scheduled for August 30, 2020, but thousands of USCIS employees and prospective immigrants into the United States dodged a bullet when the agency announced its plans to avert. According to USCIS, by reducing spending and upping revenue and receipts, the agency was able to avoid the scheduled furlough. UCSIS estimates it will now be able to maintain operations at least until the end of FY2020, which ends on September 31, 2020.

EB-5 investors should continue to be wary because, while USCIS was able to stave off these furloughs, the possibility of future furloughs remains. To continue normal operations throughout FY2021, USCIS will require congressional intervention, according to USCIS Deputy Director for Policy Joseph Edlow. As it stands, EB-5 investors and other prospective immigrants should expect longer waiting times for petition adjudication. Backlogs are to be expected, and more countries may find themselves stuck in EB-5 backlogs, doomed to check the monthly Visa Bulletins to determine whether they can proceed with their EB-5 journey.

United States Citizenship and Immigration Services (USCIS) has long maintained estimated processing time ranges to help investors in the EB-5 Immigrant Investor Program gauge how long they must wait for adjudication of their I-526 petition. The estimated time range has traditionally incorporated EB-5 investors of all nationalities, irrespective of how backlogged their country may be. However, now, as of August 2020, USCIS has split the estimated processing time range for I-526 petitions into two categories: Chinese EB-5 investors and everyone else.

The move may have been inspired by a sudden sharp increase in the estimated processing time range for I-526 petitions in August 2020, with both the low- and high-end numbers in the range almost doubling. This does not necessarily indicate the average EB-5 investor will experience significantly longer wait times—the lower number in the range represents the time by which half of EB-5 investors receive an adjudication, and the higher number represents the time by which 93% of EB-5 investors receive a decision on their petition. However, the increase does push the date for case enquiry up considerably, meaning investors must wait significantly longer before they’re allowed to file a case enquiry into the abnormally long duration of their adjudication.

USCIS’s new move to categorize Chinese I-526 petitions separately from the rest of the world indicates that Chinese EB-5 investors are more likely to experience long wait times than investors from elsewhere. It’s no secret that China dominates EB-5 demand, even if its grip over the program has been diminishing in FY2019 and FY2020.

Nonetheless, the Chinese EB-5 backlog remains large, and some Chinese investors have been waiting for I-526 adjudication for more than five years. With the visa availability processing approach kicking in since April 2020, Chinese investors can expect even longer waits, easily justifying the separate category in the estimated processing time range. Finally, the addition of Hong Kong EB-5 investors to the Mainland Chinese backlog pushes the wait times up even further.

The distinction between EB-5 investors from China and those from the rest of the world is evident in the drastically higher estimated processing time range for Chinese applicants. As of August 25, 2020, the estimated time range for Chinese investors is 54–75 months, whereas investors from the rest of the world have an estimated time range of 31.5–60 months. This makes the Chinese date for case enquiry June 9, 2014, where it’s September 6, 2015, for the rest of the world—more than a year later.

The distinction is good news for EB-5 investors outside of China because it brings their date for case enquiry closer to the present. Chinese EB-5 investors, on the other hand, have to wait an astonishing six years before they’re permitted to file an enquiry into their abnormally long processing times.

With the global economic shutdowns brought on by the COVID-19 pandemic, United States Citizenship and Immigration Services (USCIS) has had more time to dedicate to processing immigration petitions such as Form I-526. The chief of the Immigrant Investor Processing Office (IPO), Sarah Kendall, also announced in a public engagement in March 2020—before the pandemic had substantially impacted the United States—that the office was better positioned than in FY2019 to process EB-5 petitions. Processing data from FY2020 Q2 indeed bears out the prediction of increased productivity, although the true state will not be known until data is released for the latter two quarters.

If USCIS’s estimated processing time range is any indication of processing productivity, the outlook for EB-5 investors may be bleak. USCIS has updated the estimated time range for I-526 processing to 46 to 74.5 months—an increase of more than a year. In May 2020, the estimated processing range was only 29.5 to 44.5 months, meaning the entire range has nearly doubled as of July 2020.

The range also starkly contrasts the most recent estimated processing range update, which was 29.5 months to 61 months. While the latter estimate increased significantly, the former remained stable, but in the newest iteration, both have surged forward, leaving EB-5 investors to expect wait times of 3.8 to 6.2 years for I-526 processing.

When looking at USCIS’s estimated time ranges for petition processing, EB-5 investors must understand what they represent. Not all investors have their petitions adjudicated within the estimated time range—in fact, the majority don’t. Half of investors receive an adjudication before the first number in the range, and 93% of investors receive an adjudication before the second number in the range. Thus, many EB-5 investors can expect a far faster adjudication than seemingly indicated.

Not Necessarily a Slowdown in I-526 Processing Volume

While the initial assumption most people have upon looking at these figures is that the processing volume at the IPO has slowed drastically, that isn’t necessarily the case. With some I-526 petitions seemingly forgotten, left unadjudicated for years on end, the IPO may be taking measures to prevent applicants from filing inquiries or even pursuing litigation.

Also important to note is that the estimated processing time range may not be entirely accurate, since USCIS does not factor the newly implemented visa availability approach into its calculations. The new approach, introduced in April 2020, prioritizes I-526 adjudications based on the number of readily available visas for the EB-5 investor’s country, meaning petitions from countries without backlogs may be adjudicated more quickly than those from backlogged countries (which, as of July 30, 2020, consist of China and Vietnam). The EB-5 community will not know the true picture of EB-5 processing volume until detailed statistics are released for FY2020 Q3 and Q4.

A life in the United States is a bright prospect for foreign nationals around the globe, but most wouldn’t dream of relocating without their family. Fortunately, the EB-5 Immigrant Investor Program allows investors to include their spouse and unmarried children below the age of 21 on their I-526 petition, making the whole family eligible for U.S. permanent resident status. The EB-5 offers various benefits to families, making it ideal for young families looking to offer their children the best, brightest future possible.

The first hurdle to overcome in the EB-5 process is I-526 approval. Form I-526 is the initial petition an EB-5 investor files, and it officially launches their EB-5 journey. On the I-526 petition, the investor must demonstrate that they have invested the appropriate amount of capital in their EB-5 project—either $1.8 million or $900,000, depending on the targeted employment area (TEA) status of the project. They must furthermore provide evidence of the lawful sources of their EB-5 capital.

Once the investor receives approval for their I-526 petition, they may apply for their EB-5 visa, assuming they have a “current” final action date in the monthly Visa Bulletin. The investor and any immediate family members—spouse and unmarried children under 21—apply for their U.S. green cards simultaneously. Each applicant may be required to fill out forms, submit specific documentation, undergo a medical examination, receive vaccinations, and pay application fees. Once the National Visa Center (NVC) receives a foreign national’s visa application, it provides them with a time and date for their visa interview, which determines their eligibility for a U.S. green card.

Upon receiving visas, the EB-5 investor has a certain amount of time to enter the United States. The investor must enter either before or at the same time as their family members. Initially, EB-5 investors and their immediate family members receive conditional permanent resident status, which expires after two years. To remove the conditions and obtain indefinite permanent resident status, the EB-5 investor must file an I-829 petition within 90 days before their conditional permanent resident status expires. In the petition, the investor must provide evidence that their EB-5 investment met the requirements of the EB-5 program, most importantly the creation of at least 10 full-time jobs for U.S. citizens and residents.

It’s important to note that conditional permanent resident status is only conditional in terms of length—during their two years of conditional permanent residency, EB-5 investors and their family enjoy all the same rights and freedoms as any other U.S. green card holder. They may live, work, study, travel, and conduct business anywhere in the United States.

Children Who Are Ineligible for the EB-5 Program

United States Citizenship and Immigration Services (USCIS) employs a narrow definition of “child,” excluding married or adult children from the definition. So, if an EB-5 investor would like to bring their married or adult child to the United States, their only option is to live as a permanent resident in the United States for five years, apply for U.S. citizenship, and sponsor their child as a citizen.

To bring an ineligible child to the United States faster, parents may consider donating EB-5 funds to their child so they can make their own EB-5 investment. In fact, this is a common route for young EB-5 investors—in some cases, the parents don’t even wish to immigrate themselves and simply want to give their child the gift of a bright future in the United States.

The EB-5 program is a particularly attractive option to prospective students who wish to study at one of the many world-renowned universities in the United States. An EB-5 visa offers prospective students an easier admissions process and potential in-state tuition savings, depending on their university of choice. It also allows them to pursue unrestricted employment opportunities during and after college and alleviates the pressure international graduates have to immediately find an employer willing to sponsor them to maintain immigration status in the United States.

In July 2020, following the introduction of a controversial Beijing-backed national security law into the Hong Kong special autonomous region, President Trump signed the Executive Order on Hong Kong Normalization, which essentially eliminated any special treatment Hong Kong received as a separate nation from China. Hong Kong previously received separate treatment from China in terms of immigration, but with this executive order, Hong Kongers have lost this privilege and are now on the same level as Mainlanders. In the EB-5 Immigrant Investor Program, Hong Kong investors similarly face a new setback: they are now subject to the same extremely large EB-5 backlog as Mainlanders. Agencies impacted by the new policies were also instructed to update their regulations accordingly by July 30, 2020. And with that, immigration into the United States from Hong Kong has suddenly become far more difficult.

In effect, from a U.S. immigration perspective, Hong Kongers have become Chinese. Unless the U.S. government introduces new legislation addressing the special treatment of Hong Kongers or President Trump (or a future president) reverses the order, Hong Kongers have lost their special status within the EB-5 program, which is bad news for both Hong Kongers and Mainland Chinese EB-5 applicants. Chinese EB-5 investors must contend with massive backlogs that prevent thousands from moving forward with their journey toward U.S. permanent resident status.

Hong Kong EB-5 applicants are encouraged to contact their immigration attorneys to discuss their next steps in the face of the legislation changes. Any Hong Kong EB-5 investor in the system at the time of the legislation change would have foreseen a relatively fast EB-5 process at the time they applied, expecting to immigrate within two to three years, but now, they may be required to wait five or more years. The policy changes could cause severe disruption to these investors’ lives and plans and is, in any case, extremely disheartening for Hong Kong EB-5 investors.

Prospective EB-5 investors from Hong Kong should also plan their investments more carefully going forward, taking into account the long wait times they can expect from being mixed in with the Mainlanders. While EB-5 investor children are generally protected from “aging out”—i.e., turning 21—because the I-526 petition processing time is subtracted from the child’s age to determine eligibility, the longer a family must wait to obtain their U.S. green cards, the more benefits of life in the United States they miss out on. Even more significantly, if an EB-5 investor’s child marries or develops significant business ties in their home country before obtaining U.S. permanent residency, they may no longer be eligible for or interested in an EB-5 visa.

The policy changes are still new, so they may incur changes going forward. For now, Hong Kong EB-5 investors should consult with their immigration attorney and ensure they can still achieve their goals under the new regulations.